• Ocean and Polar Research
• /
• v.36 no.4
• /
• pp.353-365
• /
• 2014

Artificial islands, installations and structures have been used as a major means for ocean development and management since the early 20th century. The International legal regime to regulate the man-made offshore structures also have evolved and the UN Convention on the Law of the Sea (UNCLOS) acts as a basic international instrument for that purpose. Although the Convention includes more detailed provisions on man-made offshore structures, there are some legal issues regarding jurisdiction of coastal State on the man-made offshore structures in the Exclusive Economic Zone (EEZ) or on the Continental shelf. For this reason, this article begins by reviewing the 1958 Convention on the Continental shelf and the UNCLOS by focusing on the EEZ and the Continental shelf regime governing the man-made offshore structures. It next examines some controversial international legal issues that have emerged from the regulation of man-made offshore structures in the EEZ or on the Continental shelf. This is followed by a review of the Korean domestic laws regulating artificial islands, installations and structures in the EEZ or on the continental shelf. Finally, it closes by summarizing the findings of the above examinations, and suggests some recommendations for future works.

• Proceedings of the Korean Society of Marine Engineers Conference
• /
• 2006.06a
• /
• pp.137-139
• /
• 2006

The Continental shelf is important part of the coastal states' jurisdiction at sea, because there are many natural resources in continental shelf. This paper examines the concept and legal status of the continental shelf, the limit of the continental shelf, and expecially the rights and duties of the coastal state relating to its continental shelf.

• 발명특허
• /
• v.36 no.11
• /
• pp.14-18
• /
• 2011

미국은 관습법(시민사회의 자생적 발전에 기초한 풀뿌리 민주주의를 토대)으로서 아래로부터(Bottom-up) 상거래 관행이 상표법에 조문화된 보통법 (common law) 체계인 반면, 한국은 시민사회의 기반 없이 정부주도로 바람직한 현상(1천년이 넘는 오랜 권위주의 체제를 토대)으로서의 법규범을 형성하기 위해 상표법을 제정한 대륙법(Continental law) 체계라는 법철학적 차이점이 있다.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.43
• /
• pp.239-273
• /
• 2009

Marine insurance contracts, which intended to provide indemnity against marine risks upon the payment of a premium, originated in Northern Italy in the late 12th and early 13th centuries. The law and practice of Italian merchants were later introduced into England through Lombard merchants. It is, therefore, quite exact that English and Continental marine insurance law have common root. Nevertheless, some significant divergences between English and Continental marine 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 established 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 developed a unique rule on warranty. Bearing in mind the realities of the 18th century, it could easily be understood why Lord Mansfield afforded such a strict legal character to marine warranties. At that time, the 'promise' given by the assured, played an important role for the insurer to assess the scope of the risk. Legal environments, however, have changed dramatically since the times of Lord Mansfield. Of course, it is still important that the assured keep his promises to the insurer under the insurance contract, which is based upon utmost good faith. Nevertheless, the remedy of automatic discharge from liability, regardless of existence of a casual link between the breach and loss seems harsh in the realities of the 21st century. After examining the warranty regime adopted by the German and Norwegian hull clauses, it is fair to say that they provide a more equitable approaches for the assured than does English law. Therefore, this article suggests that English warranty regime needs overall reform and it is time to reform.

• Ocean and Polar Research
• /
• v.26 no.4
• /
• pp.669-678
• /
• 2004

Coastal states are adopting maritime boundary delimitation as their primary maritime policy because maritime jurisdiction directly relates to vast economic interest. This becomes specially important and sensitive when complex maritime boundary issues are involved between neighboring coastal states. China has not actively carried out nor declared maritime boundary delimitation until recently with any country except Agreement between China and Viet Nam on the demarcation of the territorial water, the exclusive economic zones and the continental shelf of China and Vet Nam in the Gulf of Tonkin on 25 December 2000 (hereinafter, the Gulf of Tonkin Agreement). The principles that governs maritime boundary delimitation are to consider primarily an agreement between States concerned, however, if no agreement can be reached, all relevant circumstances are considered to achieve an equity between concerned States. Relevant circumstances are length of coastline, form of coastline, existence and position of island or islands, speciality of geology/topography, and factor of economy and deffnce. Factors which sinologists are considering in regard to continental shelf delimitation of the Yellow Sea are as follows; i) geographical factor, ii) geological factor, iii) topographical factor, iv) environment and ecological (factor, v) historic interest, and vi) social and economic interest. The 'Gulf of Tonkin Agreement' is completed by basically applying the principle of delimitation according to median line which seems that China has adopted the maritime boundary delimitation principle of 'half and half' which was the intention of chinese government. At the same time, China recognized Viet Nam's dominion and sovereign right over the partial exclusive economic zone and the continental shelf of Dao Bach Long Vi in Gulf of Tonkin. This case can be considered as an example of mutual concession or compromise in delimiting maritime boundary for states of concerned.

• Journal of Arbitration Studies
• /
• v.21 no.1
• /
• pp.131-155
• /
• 2011

PICC executes its role as a useful lex mercatoria in the continuously increasing international trade to be adopted as the standard criterion of prevention or dispute resolution. When considering the fact that GISG has not presented results beyond expectation in the past due to hard laws and legal deficiency, PICC, which possesses interpretation and supplementation function, is considered undoubtedly useful particularly in international commercial arbitration. As observed in the previously mentioned analysis on cases accumulated in UNILEX, PICC application and Arbitral tribunal in international contract between parties possess considerably large claim possibility and the number of actual application cases is continuously increasing. The fact that PICC has been composed as maximum common measures of continental and common law systems by traditional comparative legal scholars familiar with international trade can function as the fundamental principle in future global trade activity and can also act as the model law for uniting contract laws of nations. In this aspect, PICC can be evaluated to have considerably achieved enactment purpose of previous intention. However, additional topics that had not been accepted in the revised edition of PICC remain as assignments requiring solution, such as analysis and acceptance problem of comparative law, PR of PICC unfamiliar even to the relative parties of international trade and application in international contract, and absorption problem as model law in various domestic laws.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.71
• /
• pp.1-36
• /
• 2016

Unlike continental European legal systems (civil law systems), specific performance in common law refers to an equitable remedy requiring exactly the performance that was specified in a contract. It usually granted only when money damages would be an inadequate remedy and the subject matter of the contract is unique. Thus, under common law specific performance was not a remedy, with the rights of a litigant being limited to the collection of damages. Consistent with the practice in civil law jurisdictions, United Nations Convention on Contracts for the International Sale of Goods (CISG) makes specific performance the normal remedy for breach of a contract for the sale of goods. Therefore, the buyer may require a breaching seller to deliver substitute goods or to make any reasonable repair. Likewise, the sellermay require the buyer to taker delivery of goods and pay for them. Despite this, Article 28 of the CISG restricts the availability of specific performance where it would be unavailable under the domestic law of the jurisdiction in which the court is located. Thus, the CISG's more liberal policy toward specific performance is restricted by common law. There are some legal issues in CISG's specific performance availability by Article 28. This paper analyzes these issues as interpreting Article 28 of CISG, by examining various theories of application to actions for specific performance and comparing CLOUT cases involving CISG Article 28.

• Korean Journal of Social Welfare Studies
• /
• v.41 no.4
• /
• pp.161-187
• /
• 2010

This study begins with two research interests. Firstly, there seems to be a break of research in the field of family policy in Korea which exists especially in regard to family law. Family law was originally the core of state interventions in family life, but has been neglected because of the lack of literature with comparative research methods. This shortcoming needs to be addressed. Secondly, through inquiry into the definition of family or family policy with the lens of the law, the definition of family or family policy can be correctly extended. With these two interests combined, this research tries to derive an analytical tool - maintenance community - of the law and compare some important points of the family law of Korea with those of 16 EU-countries in terms of regime classification. The method used is, firstly, to describe the subjects of family law with a focus on partnering and parenting without subjective interpretation, and secondly, to classify the countries' family-law regimes with the criteria of privacy and autonomy using cluster analysis. The results show that the countries can be classified into three clusters: Nordic (Norway and Sweden), West-Northern (Denmark, France, England, Finland, and Belgium) and Middle South (Italy, Spain, Austria, Portugal, Netherlands, Greece, Ireland, Germany, and Korea). This result can be compared to a precedent research result which showed that 21 OECD countries can be classified in three clusters according to family policy. The number of the clusters is the same as this study, but some countries belong to other clusters; for example Denmark and Finland belong to the Nordic cluster according to family policy, while they belong to the West-Northern according to family law, and Austria, Germany, and Ireland belong to the Middle-South cluster according to family law, while they belong to the Continental according to family policy. From this result we can interpret Korean family law to be in the middle range according to both criteria of privacy and autonomy like other South-European countries including some Continental countries. We can make some theoretical suggestions. The fact that both family law and family policy regimes in countries can be classified into three clusters can be interpreted to mean that there exists parallelism between family law and family policy in a broad sense. But from the fact that some countries belong to different clusters according to family law and family policy, we can say that the family policy in a country is not always consistent with family law.

• Ocean and Polar Research
• /
• v.31 no.1
• /
• pp.31-50
• /
• 2009

The demarcation of Maritime Boundary is directly related to the expansion of jurisdiction and the securing of resources. Resource diplomacies of the three countries Korea, China and Japan represent a major task for the national administrations : to secure resources as well as to stablize and sustain resources for future national economies. At the sea area around Korea as well, countries are fiercely competing to secure resources and to expand jurisdiction. This is evidenced by the fact that various principles and logics which are beneficial to each own country are presented through international precedents, agreement between countries and the theories of the international law scholars. They say that the conclusion of demarcation of maritime boundary for the Yellow Sea would be easy from the point that there is no dispute related to island dominion in the waters of the Korean Peninsula especially the Yellow Sea, but still we need to have a strategic approach to this issue from the point that the factors used for claiming maritime boundaries may expand the waters of a country over much. For example, the continental shelf boundary in consideration of the distribution of sedimentary deposits in the Yellow Sea which is being raised by China began from the hypothesis that the inflow of sedimentary deposits to the Yellow Sea through the rivers of China represents absolute majority, but the results of the latest studies raised questions on the hypothesis. Especially, the studies done by Martin and Yang revealed that the inflow of sedimentary deposits to the Yellow Sea from the Yellow River is approximately less than 1% of total sedimentary deposits in the Yellow Sea, and also the result of analysis on the causes and counter policy measures on the environment of Bohai, China supports the reliability of the results of such studies. From a legal aspect, the sedimentary deposits of rivers which are claimed by China represent extremely weak ground for the claim for the title of the continental shelf. The siltline claimed by China seems to be based on the Article 76-4-(a)(i) of UNCLOS. This is, however, not the definition on the title of the continental shelf but it is only a technical formula to utilize in a case where a country desires to expand the continental shelf to over 200 nautical miles. Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf also confirm this point through the Article 2.1.2 of the Guideline. The only case in which sedimentary deposits of rivers were referred to as concrete demarcation of maritime boundary was in the which was concluded in 1986 between India and Myanmar at the Andaman Sea. In the said case, India acknowledged the boundary up to the isobath of 200m which Myanmar claimed based on the sedimentary deposits of the Irrawaddy River. It has limits as a case for acknowledging the sedimentary deposits, however, because in fact India's acknowledgment was made in exchange for the condition that Myanmar gave up the dominion of two islands which they had been claiming from India up until that time.

• Ocean and Polar Research
• /
• v.28 no.2
• /
• pp.175-186
• /
• 2006

There are disputes for oil and gas development between China and Japan in the East China Sea. These involve the area where China is already carrying out activities of oil and gas development and where Japan is proclaiming its EEZ. China insists that the Chinese activities on oil and gas development area are being carried out within the Chinese jurisdictional waters even if the median line principle of Japanese proclamation is applied in delimitation. Indeed, the permit for Japanese development is causing disputes between China and Japan because its permit allows development in the waters adjacent to Chinese development area. h the event, the core of this dispute around the oil and gas field in the East China Sea relates to issues of maritime boundary delimitation and issues of resources acquisition with both states. Chinese policy on oil and gas development is to first consider development issues in accordance with a median line principle where waters toward to China from the median line should be developed by China and the area toward Japan from the median line within the Chinese continental shelf should be jointly developed. However, the Japanese position is that the East China Sea should be jointly developed, and Japan hopes to eventually convince China to accept its median line delimitation. With on-going development of such issues, Korea should establish a strategy of negotiation based on analyses of resource distributional conditions and other strategic factors in the Korean delimitation area. In particular, Korea should prepare and make the best use of joint development zone established in an agreement between the ROK and Japan concerning the development of the southern part of continental shelf adjacent to both states.