• 무역상무연구
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• 제73권
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• pp.65-90
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• 2017

The rule of warranty in English insurance law was established in the second part of the $18^{th}$ century by Lord Mansfield, who laid the foundations of the modern English law of insurance contract and developed very different rule of insurance law, especially in the field of warranty. At the time of Lord Mansfield, warranty, that is, 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 since the age of Lord Mansfield. English and Scottish Commissions proposed very dramatic reform of law in the field of warranty law to reflect the changes of legal environment through the Insurance Act 2016. This article intends to consider the legal implications through the comparative analysis between the new regime of warranty in the Insurance Act 2015 and MIA 1906. The major changes in the Insurance Act 2015 are summarized as following. First, Basis of the contract clauses in non-consumer insurance contracts should be of no effect and representations should not be capable of being converted into warranties by means of a policy term or statement on the proposal form. This requirement should not be capable of being avoided by the use of a contract term and the arrangement of contracting out by parties should be of no effect. Secondly, The existing remedy for breach of warranty, that is, automatic discharge of the insurer's liability, should be removed. Instead, the insurer's libility should be suspended from the point of breach of warranty and reattach if and when a breach of warranty has been remedies. Thirdly, A breach of warranty should genally be regarded as remedied where the insured ceases to be in breach of it. In the other hand, for time-specific warranties which apply at or by an ascertainable time, a breach should be regarded as remedies, if the risk to which the warranty relates later, becomes essentially the same as that originally contemplated by the parties. Fourthly, where a term of an insurance contract relates to a particular kind of loss, or loss at a particular location/time, the breach of that term should only give the remedy in relation to loss of that particular kind of loss, or at a particular location/time. Finally, whether a term of an insurance contrat relates to loss of a particular kind of at a particular location/time should be determined objectively, based on whether compliance with that ther would tend to reduce the risk of the occurrence of that category of loss.

• 한국컴퓨터정보학회논문지
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• 제21권12호
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• pp.213-218
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• 2016

China is defending the terrorist crime through the Anti-Terror Law and anti-terrorism criminal legislation. China's Anti-Terror Law and the Criminal Code Amendment (9), which were promulgated in 2015, provide legal grounds for preventing and hurting ever-growing terrorist crimes. In particular, China's amendment to the Criminal Code (9) is designed to rigorously enforce the legal framework for terrorist crimes, protect prejudicial rights that might be violated by serious terrorist crimes, and protect the penalties for terrorist crimes. However, China's anti-terrorism legislation still has drawbacks such as lack of systematicity, limited regulatory boundaries, and lack of rigorous penalties for the establishment of anti-terrorism legislation. To counter this, China's anti-terrorism legislation must strictly regulate the legal system of terrorist crimes, secure penalties, and prescribe anti-terrorism laws as professional chapters.

• 한국중재학회지:중재연구
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• 제20권3호
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• pp.3-24
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• 2010

In the approaching 21th century, the outstanding development in international trade and commerce has established arbitration as the preferred form of dispute resolution on international business transaction. Because the form of commercial dispute becomes more complicated and varied with the quantitative increase of them, the reasonable and rapid settlement of them must be the important problem simultaneously. In this article, the author discusses various issues on the recognition and enforcement of an foreign arbitral awards under Korean Arbitration Act, which is modeled after the Model Law on International Commercial Arbitration of the UNCITRAL of 1985. The Dec. 31, 1999 amendment to the Korean Arbitration Act admits the basis for enforcement of foreign arbitral awards rendered under United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958(commonly known as the New York Convention). Korea has acceded to the New York Convention since 1973. When acceding to the convention, Korea declared that it will apply the Convention to the recognition and enforcement of awards made only in the territory of anther Contracting State on the basis of reciprocity. Also, Korea declared that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of Korea. The provision relating to the enforcement of arbitral awards falling under the New York Convention consists of Article III, IV, V. In particular, Article V of the New York Convention enumerates the grounds for refusal of recognition foreign arbitral awards. The grounds are separated into two categories : One that abides by procedures and the others are based on national legal sovereignty. In Korea, a holder of a foreign arbitral award is obliged to request from the court a judgment ordering enforcement of awards. Because Korea requires enforcement to be based on a judgement, the result is that arbitral of award holders are forced to institute domestic litigation.

• 수산해양교육연구
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• 제28권6호
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• pp.1761-1771
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• 2016

In respect of the existing relation between Sea-going Vessels and Vessels at anchor, Korean Maritime Safety Tribunal has applied 'Ordinary Practice of Seamen' that is regulated by the article No. 2 of COLREG. That is, general navigation rule is not applied between the two vessels, and the action to avoid collision of vessels by utilizing experience knowledge of the seamen. However, the content of the Ordinary Practice of Seamen included in the revised plan in the process of 2011 "Maritime affairs Safety Act" revision was deleted in the screening of the Office of Legislation due to the reason that it could not specified when the content of deed is not concertized. Furthermore, prior application regulation of international treaty included in the existing "Sea Traffic Safety Act"(Article 5) was deleted in the screening of the National Assembly. So, doubt about whether the Ordinary Practice of Seamen could be continuously applied according to the regulation of the international treaty, nevertheless not specified in domestic law, has been continuously raised. In this situation, recently Central Maritime Safety Tribunal changed precedent by applying of Article 96(3) of Maritime Safety Act without applying Ordinary Practice of Seamen in the Case No. 2015-001. Accordingly, this study intended to review propriety of precedent change and legal issue with the decision of Central Maritime Safety Tribunal excluding Ordinary Practice of Seamen for a collision between Sea-going Vessels and Vessels at anchor.

• 한국항해학회지
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• 제14권3호
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• pp.63-73
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• 1990

Students of the Mogpo Merchant Marine College must complete one year's shipboard training course according to IMO(International Maritime Organization) regulations as an obtaining matter of Certificate of Competency. The purpose of this shipboard training course lies int he student's acquiring practical knowledge and sill as a part of a course of study and, in the future, fostering essential adaptability and leadership, especially in bad circumstances on the sea. The shipboard training course has two kind that the students can be trained either on the training ship or on a merchant ship of the shipping company. In this paper, I only thought over the legal status of apprentice officers on the merchant ship and analyzed the problems practicably during shipboard training. This paper is made up of five chapters. The first chapter contains the purpose contents and method of this study, in the second, the meaning of shipboard practice education and training, in the third, the legal status of apprentice officers on merchant ship, in the fourth, the analysis of the provisions of the seamen act applied to apprentice officers on a merchant ship. And in the last chapter 5, the contents mentioned is summarized and directions are presented to amend the provisions of the seamen act applied to apprentice officers. The conclusions are as follows. 1.In case of shipboard training on overseas employment ship, the seamen act applied to the manning agent employing the apprentice officers should be reinforced. 2. The provisions of disembarkation in mid course by discipline of the seamen acts Article 24 should be relaxed. And the provisions in relations to seamen's duty to be a reason of discipline applied to apprentice officer among the provisions for ship's public order maintenance should be abolished. 3. The provision of repartriation completely should be applied to apprentice officers and the provisions of a journey expenditure during their embarkation or disembarkation have to be established. 4. The apprentice officers in shipboard training also need securing a basic wages provision to be criterion of an accident compensation. 5. The apprentice officers in shipboard training should not be in charge of third officer's or third engineer' study.

• 무역상무연구
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• 제69권
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• pp.327-348
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• 2016

Under the Korean legal system, as an actual carrier is not the contractual party to the contract for carriage of goods by sea, it has been tortiously liable for the damage to, or loss of cargo, should there be the negligence by its part. However, the Rotterdam Rules introduces a revolutionary liability regime for the actual carrier. According to the Rotterdam Rules, the liability of the actual carrier is same with that of a contractual carrier with the result that a shipper is entitled to bring the direct action to the actual carrier, as well as the contractual carrier on the same basis. Nevertheless, it is expected to take long time for the new approach in respect of actual carrier's liability to be confirmed by many countries, and furthermore most of shipping countries including Korea still adopt the Hague-Vis by Rules where the shipper is not allowed to bring the direct action to the actual carrier. This study reviews on whether or not the alteration of actual carrier's liability based on Rotterdam Rules would be reasonable, considering the current Korean legal system. Furthermore, this study, whilst recognizing that the overall introduction of the new liability regime is somewhat premature, suggests the imposition of contractual liability to the actual carrier from a long-term perspective. Having in mind that the article 809 of the Korean Commercial Act allows the shipper to bring the direct action to the shipowner only in the case that a time charterer is the contractual carrier, this study explores a method to apply the contractual liability to the actual carrier in the case that a slot charterer or freight forwarder is the contractual carrier, in order to establish the uniform liability system.

• 한국산업보건학회지
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• 제32권4호
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• pp.393-401
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• 2022

Objectives: OHSMS, which was introduced by Serious Accident Punishment Act as a means for safety and health management at work place, but it is not effective according to recent statistical data. Therefore, I intend to compare the OHSMS regulations of SAPA based on ISO 45001, the international standard of OHSMS, and examine the differences and problems. Methods: The OHSMS regulation of Serious Accident Punishment Act was compared and analyzed using the content standard of ISO 45001, the international standard of OHSMS. The construction and operation aspects and differences in key concept definitions of OHSMS were analyzed in depth. Results: ISO 45001 aims to provide OHSMS with an autonomous framework to manage risks and opportunities in safety and health management, whereas Serious Accident Punishment Act aims for safety and health management through an interest and effort in safety and health management on the premise of legal responsibilities of corporations and CEO. As a result, comparing to ISO 45001 in construction and operation aspects and differences in key concept definitions of OHSMS, the OHSMS of Serious Accident Punishment Act do not cover the entire business in concept definition and construction. Conclusions: In order for Serious Accident Punishment Act to achieve its original purpose of preventing serious accidents through systemic safety and health management, it is necessary to correctly understand the contents of ISO 45001 and to revise the OHSMS regulations in a direction that can ensure predictability and feasibility.

• 무역상무연구
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• 제72권
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• pp.57-80
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• 2016

Since 2006, the Law Commission and Scottish Law Commission have been engaged in a major review of insurance contract law, finally leading to the legislation of Insurance Act 2015. According to the enforcement of the Insurance Act 2015 on 12 August 2016, ss 18~20 of the Marine Insurance Act 1906(MIA 1906) were repealed and substituted by the new concept of fair presentation. This article intends to analyze the legal implications through the comparative research between the duty of fair presentation in Insurance Act 2015 and ss 18~20 of MIA 1906. The major changes in Insurance Act 2015 are designed to (1) encourage active engagement by the insurer rather than passive underwriting, asking questions of the insured if the desired information is not provided at the stage of proposal; (2) encourage policyholders to structure and signpost their presentation in an clear and accessible way, and prevent data dumps; (3) give guidance as to how the insured should prepare a fair presentation, by undertaking a reasonable search of available information and giving examples of what circumstances might be material; (4) clarify whose knowledge in the insured's organization is attributed to the insured for the purposes of disclosure; (5) clarify the exceptions to the duty of disclosure, including circumstances "which are known or presumed to be known to the insurer"; and (6) replace the remedy of avoidance in all circumstances with more proportionate remedies. This is a default regime, which may be altered by agreement between the parties.

• 한국중재학회지:중재연구
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• 제21권2호
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• pp.85-112
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• 2011

These days utilization of copyright in daily life and economic activities is becoming more important than ever, and IT technology is developing day by day. Along with those fact, copyright infringement and dispute is naturally increasing. This thesis dealt with the 3 different issues of ADR on copyright. The First part, introduce ADR system that was performed by Korea Copyright Committee according to Copyright law. This paper evaluate the committee's efforts to provide resolution of copyright disputes via conciliation was effective. So it needs to be look over several countries' ADR, beside conventional judicial remedy. And Korea's copyright conciliation system which is successfully operating also introduced. Second, In many countries, including South Korea are take advantage of conciliation as the way to settle down the dispute over copyright. Furthermore, looked over if we can use arbitration as tool to settle dispute or not. Currently in Korea, patent dispute is handled by Industrial Property Dispute Conciliation Committee(The Invention Promotion Act Ch.5) and Layout-design Review and Mediation Committee(The Act on the Layout-designs of Semiconductor Integrated Circuits Art.29-34), but using performance of those two committee is still too low. In comparison, the copyright committee, a affiliation organization of the ministry of culture, sports and tourism has much more result in conciliation compare with patent dispute. Copyright disputes has arbitrability of it's subject-matter and many regulating organs are interested in it. (especially, binding of arbitral award and final resolution). Take advantage of both conciliation and arbitration could be good way to resolve copyright disputes. Third, the writer look at the proposal on the creation of Northeast Regional Center for Intellectual Property ADR. Because of the nature of copyright and rapid development of internet technology, international use of work become more frequent and accordingly infringement cases are increasing. The role of commercial arbitration regimes and institutions which has progressed significantly worldwide level, but which has only just begun in the intellectual property ADR area, leads also to a clash of often very different legal cultures and protection in a market economy. International cooperation in regional area with conflict interests becomes an important alternative. But it will depend on the building of regional institutions and mechanisms. The feasibility of this proposal and preconditions were examined. Establishment of new international organization requires a lot of time, cost and efforts. And risk of failure is much too high. Therefore factual, statistical review should be preceded. In addition, technical measures, such as on-line arbitration is necessary to review also. Furthermore in order to establish new organization, the relative law, legal environment, public sentiment and international compliance must be carefully considered with factual review about the needs and economic benefits of each country Yet on complex regulatory matters such as IP and ADR, a great deal of the potential benefits from international standards arises not from the international legal framework nor even the formal content of national legislation, but from the informed and effective use made of the possibilities within the system, including by policymakers and regulators.

• 법제연구
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• 제44호
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• pp.757-799
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• 2013

이 논문에서는 한국과 베트남의 사회 문화적인 이해와 상호 의사의 소통이 전제되지 않는 결혼의 위험성을 줄일 수 있는 방안을 제시하였다. 또 이혼한 후, 한국국적을 취득하지 못하여 베트남으로 귀환하는 이주여성이, 법적 조치를 완전하게 마무리 할 수 있는 방안을 제시하여 이들의 베트남에서의 재정착에 도움을 주고자 하였다. 전통적으로 자녀양육에 대한 집착이 강한 베트남여성이 모성본능을 뒤로 한 채 어쩔 수 없이 베트남으로 귀환하는, 한국에 남겨둔 한국인 자녀의 어머니에 대한 최소한의 윤리적 책임이 있기 때문이다. 구체적 방안으로 첫째, 혼인성립 절차를 강화한다. 베트남은 결혼 가족법 제14조에 의한 법집행을 엄격히 하고, 우리나라는 결혼사증 발급절차를 통하여 혼인의 진정성과 지속성을 담보하도록 하는 것이 바람직하다. 둘째, 국제결혼 당사자의 소양교육을 강화한다. 결혼이주를 희망하는 결혼당사자들이 각각 상대방 언어로 소통할 수 있는 능력을 함양하고 서로 상대국의 사회와 문화를 이해하도록 교육프로그램을 강화한다. 국제결혼중개가 베트남에서 불법적임을 감안하여, 한국과 베트남의 비영리단체를 중심으로 베트남에서 결혼이주희망 여성에 대한 한국어교육과 한국의 문화를 교육시킨 후 한국남성들과 교제를 할 수 있는 기회를 적극적으로 제공하는 방안을 강구할 필요가 있다. 향후 베트남결혼이주여성의 행복한 결혼생활을 담보할 수 있을 뿐만 아니라, 이들이 한국내에 정착하는 과정에서 지불하게 될 사회적 경제적 비용을 절감할 수 있으며, 베트남결혼이주여성의 인권보호에 크게 기여할 수 있을 것이다. 셋째, 베트남결혼이주여성에게 책임없는 사유로 혼인이 단절되는 경우 간이귀화 요건을 완화하여야 한다. 남편의 사망이나 폭행을 피하기 위한 가출 등 이주여성에게 책임없는 사유로 이혼하는 경우, 이주여성에게 간이귀화의 요건을 완화하는 것이 합리적이다. 넷째, 이혼 후 베트남으로 귀환하는 여성들의 재정착에 장애가 되는 호적문제를 해결하기 위한 입법적 지원이 필요하다. 이혼한 베트남결혼이주여성의 귀환에 따르는 법률적 미비는 이들의 베트남 재정착에 큰 방해가 된다. 경제력 법률적 능력의 부족으로 이혼에 따르는 호적정리 하지 못한 경우, 베트남 정부뿐만 아니라 한국정부도 적극적으로 이의 정리를 위해 제도적 재정적 지원을 할 수 있는 방안을 모색하여 최소한의 윤리적 책임을 다 해야 할 것이다. 우선 우리나라는 대법원 등록예규 제361호에 준한 '한국남성과 베트남여성의 이혼에 관한 절차'를 제정해 이혼에 필요한 서류의 상호교부를 제도화함으로서 스스로 호적정리를 할 수 있도록 한다.