• Journal of Korea Trade
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• 제26권1호
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• pp.81-98
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• 2022

Purpose - This study aims to compare the requirements under the United Nations Convention on Contract for the International Sales of Goods (CISG) and the Korean Civil Act (KCA) regarding the buyer's right to require the delivery of substitute goods. The buyer's right to demand substitute delivery not only protect them from the seller's breach of contract but also preserves the contractual bond between the parties by providing an opportunity for sellers to protect their goodwill and circumvent the extreme remedy of avoidance. However, as substitute delivery entails additional efforts and costs for return and re-shipment, this right should not be allowed in every case of defect. Additionally, unlike the CISG, the KCA contains no specific provision related to the requirements for claiming substitute delivery. Therefore, it would be meaningful to examine and compare what requirements should be fulfilled before the buyer exercises the right in relation to non-conforming goods under the CISG and the KCA. Design/methodology - We conducted a comparative study of the requirements under the CISG and the KCA regarding the buyer's right to require delivery of substitute goods given a seller's delivery of non-conforming goods. Additionally, we referred to the opinions from the CISG Advisory Council, the draft of the KCA amendment, and related precedents, mainly focusing on the existence and severity of defects, reasonableness, and timely notice and requests as the major requirements for substitute delivery. Findings - The results of this study can be summarized as follows: First, the CISG provides more detailed requirements about the right to require delivery of substitute goods; by contrast, the KCA does not stipulate any such requirement. Thus, specific requirements for substitute delivery should be included when amending the KCA. Second, the CISG attempts to minimize overlapping and conflict with other remedies by specifying detailed requirements for the delivery of substitutes. Third, both the CISG and KCA require reasonableness for substitute delivery. Originality/value - Although there are no explicit legal requirements for substitute delivery under the KCA, there has been relatively little discussion of this issue to date. Therefore, the findings of our study can guide future revisions of the KCA to fill this loophole. Moreover, the recently released CISG Advisory Council opinion that clarifies the continuing confusion and debate, can help distinguish which remedy is suitable for a particular case. It may provide practical advice for businesspeople in international trade as well as legal implications for the future development of the KCA.

• 대순사상논총
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• 제34집
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• pp.203-238
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• 2020

外國宗教或外國宗教法人到臺灣發展可能會遇到的法律風險以及該如何控管, 本文先以外國宗教到臺灣發展的可能性做法, 該法律規範, 類型, 流程, 注意事項…等作為本文撰寫之目的, 以便外國宗教一開始來臺灣發展時, 可以選擇適合自己的方式參考進行之。外國宗教若欲來臺發展, 其發展方式可能有幾種方法可以遵循 : 1. 宗教人士個別在臺傳教 2. 宗教團體在臺傳教, 樣態可為幾種 : 1) 以寺廟(或有宗教稱為「靈臺」)型態呈現。2) 以人民團體 (非法人宗教團體) 方式呈現。3) 未辦理登記寺廟(或有宗教稱為「靈臺 」) : 係事實上已存在之募建寺廟(或有宗教稱為「靈臺」)建築物, 因未符合辦理寺廟(或有宗教稱為「靈臺」)登記規定者, 而依據『未辦理登記寺廟(或有宗教稱為「靈臺」)補辦登記作業要點』要點所稱之未辦理登記寺廟(或有宗教稱為「靈臺」)。3. 非屬前者之具有辦事處及獨立之財產與宗教目的, 但未經政府立案或未經登記為寺廟(或有宗教稱為「靈臺」)者 (非法人宗教團體)。4. 在臺設立研究中心 : 外國宗教在外國已經設立財團宗教法人時, 來到臺灣設立分部, 得以研究中心的形態出現。5. 在臺設立法人 : 區分為「學校法人」, 「宗教社團法人」與「宗教財團法人」。以上各種類型各有不同對應的設立準據法適用依據, 本文將介紹各該準據法內容, 並介紹重要內容, 例如有關經費的部分, 對於績優宗教團體設有獎勵規範, 宗教團體申請外籍人士來臺研修教義的要點規範, 如為外文文件, 並應備具中文譯本等規定。外國宗教在臺發展因有涉外因素, 涉外民事法律適用法為我國選擇法規適用的母法, 該外國法人之屬人法事項依據涉外法規定, 係參考1979年泛美商業公司之法律衝突公約第2條及義大利國際私法第25條第1項等立法例之精神, 均採法人之設立準據法主義, 明定所有法人均以其所據以設立之法律為其本國法, 故外國宗教法人在臺之法律問題涉及到屬人法事項時, 係以其據以設立之法律為其本國法, 而外國法人之下列內部事項, 亦是依其本國法為準據法。

• 한국중재학회지:중재연구
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• 제30권1호
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• pp.87-111
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• 2020

Smart contracts are implemented by blockchain technology, which stores the terms of the contracts of both parties on the blockchain. In the event of an international dispute over smart contracts and blockchains, no special solution has been proposed, such as the enactment of the International Unification Act. The blockchain platform which operates smart contracts is decentralized and operates through distributed nodes around the world without central servers, making it difficult to establish jurisdiction and governing laws. As an alternative to traditional dispute-solving methods, a new mediation model-smart arbitration-is being attempted. The arbitration process is likely to be a preferred means of resolving disputes over smart contracts in practice. There are many problems, such as the fairness of the arbitration center on the selection and judgment of arbitrators, the question of securing reliability, the question of the validity of the arbitration agreement, and how much the court can be involved in the case. Preparations at the national level, such as fostering blockchains and smart contract experts, and overhauling the legal system, are needed.

• 무역상무연구
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• 제15권
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• pp.59-87
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• 2001

In recent years electronic fund transfers covered by the Electronic Fund Transfer Act 1978 for consumer protection and the Article 4A of Uniform Commercial Code(U.C.C.) 1989 for wholesale electronic payments in United States. Electronic fund transfers carried out by use of a wire transfer network, automated clearing house, or other communication system of a clearing house or other association of banks such as direct deposit, Fedwire, automated teller machine, point-of-sale, and credit card transactions have been increasingly common in consumer transactions and wholesale transactions. Especially, the Article 4A of U.C.C. governs the rights and obligations associated with transactions such as an issue and acceptance of payment order, execution of sender's payment order by receiving bank, and payment. These legal frameworks in connection with electronic fund transfers in United States can play a leading role in establishing model not only within the United States, but also as a basis for developments of electronic commerce law in Korea including other countries.

• 기술사
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• 제44권6호
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• pp.29-34
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• 2011

Korea has been officially classified as a non Annex-I country under the Kyoto Protocol, however, international community is used to considering it as if it were an Annex-I country. Korea has been under great pressure from the international community, especially from the EU and the US, to get included as an Annex-I country or to accept a legally-binding emissions reduction target like other developed nations. Korean Government declared its national target of emissions reduction in 2020 before the Copenhagen meeting, and also pronounced "Low-Carbon Green-Growth" as a new national paradigm to drive the entire nation toward a low carbon society and develop a new growth momentum. The 'green Act', which was passed by the National Assembly in 2009, is a comprehensive and fundamental law providing legal grounds to all of the national policies and measures that are needed to transform the nation into a low-carbon society. Korean government announced to begin Carbon Emissions Trading from 2015, instead of the originally scheduled year of 2013, considering global trends and industrial competitiveness in a flexible manner. The Carbon Emission Trading would reduce carbon emissions by 30 percent from the expected 2020 level, or 4 percent below its emissions in 2005.

• International Journal of Computer Science & Network Security
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• 제22권8호
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• pp.323-327
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• 2022

The field of this study is in Islamic jurisprudence. Taking the preferred saying is contrary to the original, and takes it if necessity or need arises. There are reasons for adopting the preferred saying that were mentioned in this research so that the mufti and jurist know when to take the preferred saying, and when to act with the most correct saying. The origin is the work of the jurist and mufti by saying the most correct. If the necessity or the need that prompted the mufti to take the preferred saying ceases, then he returns to work with the most correct saying, and gives it precedence over the most preferred opinion. The researcher recommends that this topic be given more attention from researchers, and that it is taken care of in jurisprudential developments; So that the embarrassment of the nation is lifted, and the jurists clarify the legal ruling on emerging issues.

• 의료법학
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• 제7권2호
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• pp.311-330
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• 2006

As issues of education, employment and so on, the medical issue is one of the hot spots of society in China today. The health system reform which was pushed ahead after China's Revolution and open to the outside world hasn't received great progress. Many actual problems haven't been solved, for example it is difficult and expensive to see a doctor. With the development of the economy and society, the citizen's legal consciousness has gradually risen. They make a claim for better medical service. At the same time, the number of the disputes of medical care arises annually. China has sped up the opening of service trade for fulfilling promises of entry the WTO since 2001. China has already opened many service trade fields, including medical field. From the domestic perspective, there are many problems in domestic medical department. From the international perspective, China's present medical level falls behind the world advanced medical level. Under this background, it is a bold act for China to open the medical service field to foreign investors. Today, a huge medical service market is developed in China. However, the government's investment to medical devices and the financing channels is limited. Therefore, it is inevitable that individuals, social organizations and foreign investors invest to the medical market. In view of the situation, Chinese government issued a series of relevant laws and rules. In recent years, many multinational companies, consortiums, charitable institutions, enterprises and individuals establish various medical institutions in China. But there are rare research in the actuality and legal subject of foreign investment to Chinese medical market. Hence, it is necessary to realize the actuality of foreign investment to Chinese medical market, to familiar with the elements and procedure of establishing foreign joint and cooperative medical institution. Meanwhile, analyzing the existing problems and posing the legal subject have important theoretic and practical value.

• 무역상무연구
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• 제67권
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• pp.23-47
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• 2015

European Commission drafted and proposed the Common European Sales Law(CESL) to the European Parliament for the realization of a uniform set of international private law rules within the EU internal market. Since its purpose is for free international commercial activities for the sale of goods, for the supply of digital content and for related services, it was proposed to enable EU Member States to adopt or supplement as their substantive law according to their options. This study is relate to the legal bases on termination of a contract under CESL, they are composed of three parts: damages and interest, restitution and prescription. Damages and interest are divided into damages, general provisions on interest on late payments, and late payment by traders. Damages are explained by dividing into right to damages, general measure of damages, foreseeability of loss, loss attributable to creditor, reduction of loss, substitute transaction, and current price. Restitution is described by dividing into restitution on revocation, payment for monetary value, payment for use and interest on money received, compensation for expenditure and equitable modification. Prescription is explained by dividing into general provisions, periods of prescription and their commencement and extension of periods of prescription. General provisions explain right subject to prescription into a right to enforce performance of an obligation and any right ancillary to such a right. Regarding period of prescription, the short one is two years and the long one is ten years. However, in the case of a right to damages for personal injuries, period of prescription for such right is thirty years. Regarding commencement, the short one begins to run from the time when the creditor has become, or could be expected to have become, aware of the facts as a result of which the right can be exercised, while the long one begins to run from the time when the debtor has to perform. However, in the case of a right to damages, the CESL clarifies that it begins to run from the time of the act which gives rise the right.

• 한국중재학회지:중재연구
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• 제20권2호
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• pp.173-198
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• 2010

The purpose of this paper is to research on the liability for the space damage and the settlement of the dispute with reference to the space activity under the international space treaty and national space law of Korea. The United Nations has adopted five treaties relating to the space activity as follows: The Outer Space Treaty of 1967, the Rescue and Return Agreement of 1968, the Liability Convention of 1972, the Registration Convention of 1974, and the Moon Treaty of 1979. All five treaties have come into force. Korea has ratified above four treaties except the Moon Treaty. Korea has enacted three national legislations relating to space development as follows: Aerospace Industry Development Promotion Act of 1987, Outer Space Development Promotion Act of 2005, Outer Space Damage Compensation Act of 2008. The Outer Space Treaty of 1967 regulates the international responsibility for national activities in outer space, the national tort liability for damage by space launching object, the national measures for dispute prevention and international consultation in the exploration and use of outer space, the joint resolution of practical questions by international inter-governmental organizations in the exploration and use of outer space. The Liability Convention of 1972 regulates the absolute liability by a launching state, the faulty liability by a launching state, the joint and several liability by a launching state, the person claiming for compensation, the claim method for compensation, the claim period of compensation, the claim for compensation and local remedy, the compensation amount for damage by a launching state, the establishment of the Claims Commission. The Outer Space Damage Compensation Act of 2008 in Korea regulates the definition of space damage, the relation of the Outer Space Damage Compensation Act and the international treaty, the non-faulty liability for damage by a launching person, the concentration of liability and recourse by a launching person, the exclusion of application of the Product Liability Act, the limit amount of the liability for damage by a launching person, the cover of the liability insurance by a launching person, the measures and assistance by the government in case of occurring the space damage, the exercise period of the claim right of compensation for damage. The Liability Convention of 1972 should be improved as follows: the problem in respect of the claimer of compensation for damage, the problem in respect of the efficiency of decision by the Claims Commission. The Outer Space Damage Compensation Act of 2008 in Korea should be improved as follows: the inclusion of indirect damage into the definition of space damage, the change of currency unit of the limit amount of liability for damage, the establishment of joint and several liability and recourse right for damage by space joint launching person, the establishment of the Space Damage Compensation Review Commission. The 1998 Final Draft Convention on the Settlement of Disputes Related to Space Activities of 1998 by ILA regulates the binding procedure and non-binding settlement procedure for the disputes in respect of space activity. The non-binding procedure regulates the negotiation or the peaceful means and compromise for dispute settlement. The binding procedure regulates the choice of a means among the following means: International Space Law Court if it will be established, International Court of Justice, and Arbitration Court. The above final Draft Convention by ILA will be a model for the innovative development in respect of the peaceful settlement of disputes with reference to space activity and will be useful for establishing the frame of practicable dispute settlement. Korea has built the space center at Oinarodo, Goheung Province in June 2009. Korea has launched the first small launch vehicle KSLV-1 at the Naro Space Center in August 2009 and June 2010. In Korea, it will be the possibility to be occurred the problems relating to the international responsibility and dispute settlement, and the liability for space damage in the course of space activity. Accordingly the Korean government and launching organization should make the legal and systematic policy to cope with such problems.

• 헤리티지:역사와 과학
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• 제53권4호
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• pp.274-291
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• 2020

「문화재의 불법적인 반출입 및 소유권 양도의 금지와 예방수단에 관한 협약」(이하 '1970년 협약')이 유네스코에서 채택된 지 올해로 50주년을 맞았다. 한국은 지난 1983년 협약에 가입한 이래 「문화재보호법」을 통해 국내적으로 협약 당사국의 주요 의무를 이행해 왔다. 이는 한국이 최근 「무형문화유산 보호 협약」이나 「세계문화유산 및 자연유산의 보호에 관한 협약」 등 다른 유산 관련 유네스코 협약의 이행을 위해 특별법을 도입한 것과는 차이가 있다. 아울러 「1970년 협약」이 지난 2015년 새롭게 「운영지침」을 채택하며 협약의 구체적 이행을 위해 계속 발전하고 있는 점은 한국의 「1970년 협약」에 대한 국내법적 대응의 현재를 평가하고 향후 개선 방안을 검토하는 시의성을 제공해 주었다. 「문화재보호법」은 「1970년 협약」이 부과하는 당사국 의무 사항을 전반적으로 잘 반영하고 있다. 문화재 반출증명서 도입이나 불법 반출 문화재 취득 금지를 위한 국내 입법적 조치, 타 당사국의 요청에 따른 문화재 회수 및 반환, 관련 불법 행위에 대한 형법적·행정적 제재 부과 등 협약이 요구하는 주요 조치를 잘 포함하고 있으며, 실제로 한국의 협약 이행사례는 2019년 협약 당사국 총회에서 우수 사례로 소개되기도 하였다. 그러나 문화재 불법 거래 시장의 변화와 관련 국제 법제도의 발전은 「1970년 협약」의 국내법적 이행에 여전히 개선점이 존재함을 보여 준다. 특히 협약의 「운영지침」은 두 가지 측면에서 당사국에 관련 법제도의 개선을 협약보다 한 발 더 나아가 권고하고 있는데, 「문화재의 도난 및 불법 반출에 관한 유니드로와 협약」의 선의 취득자를 판단하기 위한 '상당한 주의'에 대한 구체적 조항 참고와 새로운 문제로 대두된 인터넷을 통한 문화재 불법 거래 대응이 그것이다. 향후 이러한 내용의 적절한 반영을 위해 「문화재보호법」과 관계 법령의 개정을 검토해 볼 수 있다. 그 계기에 협약 이행의 국제 협력 촉진을 위한 구체적 조문도 마련할 수 있을 것이다. 끊임없이 변화하는 문화재 불법 거래 및 환수와 관련된 국제 환경에 대응하기 위한 국제 사회의 법적 협력에 한국이 더욱 활발히 동참할 수 있기를 기대한다.