• Journal of Arbitration Studies
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• v.17 no.2
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• pp.3-21
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• 2007

Arbitration is a private and contractual means of dispute resolution. As a creature of contract, any particular arbitration owes its existence-and attendant limitations-to an arbitral agreement. This means that, in practice, the parties select their own judges, forum, and rules. By agreeing to arbitration, parties hope to achieve several goals. And arbitration has proven to be quicker, cheaper, and more predictable than litigation as a means of resolving many types of claims. As a primary method of conflict resolution, it is now worthwhile to consider carefully any procedural mechanism designed to promote the central aims of this alternative to litigation. It is helpful to frame any particular analysis according to (1) the type of decision for which preclusive effect is sought (arbitral award or court judgment) and (2) the type of subsequent proceeding in which preclusion is sought (an arbitration or a litigation). Res judicata may well bar litigation of that claim between the parties, but non-parties (affiliates or individuals) will not benefit from this bar unless the arbitral tribunal makes findings sufficient to satisfy the elements of collateral estoppel. The final permutation to be considered involves an arbitral award's preclusive effect on a subsequent arbitration. Whether a prior court decision should preclude issues or claims in a subsequent arbitration presents the easiest case for analysis. It is the easiest primarily because there is generally little room to debate whether adequate procedures were followed in a litigation. That is, one can safely assume that the rules of evidence and the rules of civil procedure were followed and that formal records sufficiently memorialize both the proceeding itself and the ultimate decision. Procedural regularity is mentioned not necessarily because it is an analytic tool, but because so many jurists and scholars see it as an impediment to the application of preclusionary doctrines.

• The Korean Society of Law and Medicine
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• v.9 no.2
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• pp.311-338
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• 2008

This paper aims to introduce an overview of the regime of expert witness in the medical malpractice litigation, and to provide a plan of how to make it improved. In regard with medical expert witness, several problems, such as time-consuming procedure, non-neural and unclear opinion without reasons provided, have been pointed out for several years. Lack of skill of the court and plaintiff/defender to question the expert is one of many cause to lead to the above problems. What is questioned to the expert? Because expert witness is used in determining probability of negligence, questions to the expert should be selected on the grounds of whether or not to obtain opinions or facts sufficient to let the judge infer negligence in view of the theory of proof burden established by the Supreme Court. In addition, to avoid non-neutral and unclear opinion, it is necessary to question the expert clearly, specifically and scientifically.

• Asian Journal of Innovation and Policy
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• v.7 no.1
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• pp.190-206
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• 2018

This article focuses on the legal systems and practice of intellectual property protection in Japan and China, including the relating civil litigation and administrative litigation procedures. The challenge of balancing the relationship between an invalidation trial and an invalid defense during the process of civil patent infringement litigation is a common issue to be solved in both Japan and China. In addition, it is quite usual that the IP products are being imported and exported across the borders due to the expansion of international trade. Accordingly, one of the most symbolic and difficult issues is how to balance the development of international trade and IP protection in each country. In other words, there is a practical issue regarding whether a parallel import of patented products is acceptable to a country or not. The key to determining this issue depends on the judgment of international exhaustion.

• Journal of Arbitration Studies
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• v.13 no.2
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• pp.263-290
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• 2004

Dispute plays a key role in maintaining the desirable performance of trade transaction. Although avoidance of disputes is always a priority, it is also important to prepare methods of dispute resolution which are efficient and economical. So, understanding of chinese dispute resolution system is a necessary requirement for successful business operation with chinese companies. This article analyzed and compared with the ways of trade disputes settlement system such as negotiation, mediation, arbitration and litigation in China in order to help the Korean traders who enter into business with the chinese companies to settle their disputes efficiently. This article suggests that two methods of negotiation and mediation are more likely to be effective than arbitration and litigation to resolve disputes with chinese companies because of problems of enforcement of arbitral award and the uncertainty of China's legal system.

• Asia Marketing Journal
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• v.18 no.1
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• pp.55-73
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• 2016

With continuous news headlines related to patents in the public media, awareness of patents' value is spreading, and patents are valuable not only to a firm but also to consumers. Therefore, this study makes an effort to explore the theoretical mechanism of the effects of patent infringement litigation (PIL) on customers. More specifically, this study examines the influence of PIL on customer-based brand equity (CBBE) and brand innovation image (BII). Based on this study's findings, PIL's outcomes directly affect BII, which in turn indirectly affects CBBE. That is, people will evaluate a winning brand as a highly innovative brand, which contributes to higher brand equity. However, in regards to PIL's direct effect on CBBE, there are some differences between Apple and Samsung. In the case of Apple, the winner image positively affects only one dimension of CBBE, brand loyalty, while for Samsung, the plaintiff's image negatively affects brand loyalty.

• Korean Journal of Construction Engineering and Management
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• v.21 no.1
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• pp.40-49
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• 2020

This study analyzed the factors affecting the ruling of litigation on the housing reconstruction and housing redevelopment project based on the cross analysis and logistic regression analysis. According to cross analysis result, the defensive process prerequisite group was showed significant in many variables which were past legal relation, no ownership or association member status, double lawsuit, abuse of lawsuit right·litigation trust, existence of claim-preclusion, no standing to sue·no standing to be sued, lapse of litigation period, no legal interest, no own defect of approval. On the other hand, the offensive cause of action group was found to have no significant variable. According to logistic regression result, the defensive process prerequisite group was showed significant in many variables which were past legal relation, no standing to sue·no standing to be sued, no ownership or association member status, double lawsuit, no own defect of approval, abuse of lawsuit right·litigation trust, existence of claim-preclusion. Meanwhile, the offensive cause of action group was showed significant in only one variable that was defect in relation with articles of association. Overall, it is noteworthy that the offensive cause group showed very low significant results compared with the defensive process prerequisite group.

• Korea Trade Review
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• v.43 no.5
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• pp.139-158
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• 2018

As trade volume increases and the business environment becomes more complex and competitive, international trade disputes are also increasing and becoming more complex. Parties need to become more aware of alternatives to costly and time consuming arbitration and litigation. The ADR (Alternative Dispute Resolution) can encompass all dispute resolution processed and can act as a substitute for traditional litigation. Mediation, a type of ADR, offers an amicable dispute settlement mechanism between concerned parties through a natural mediator. There are several strong points of mediation compared with litigation or arbitration. First of all, mediation can take place without having to complete time-consuming and expensive discovery processes associated with litigation. In addition, since mediation is considered a private process, the dispute can remain out of the public eye. It can be embarrassing and disrupt business when customer or suppliers learn that a company is involved in litigation. Lastly, mediation is less adversarial than litigation or arbitration, so the parties often can salvage their relationships. Often the parties to mediation find themselves continuing to conduct business. In spite of such benefits of mediation, it is less used in Korea and therefore, this article aims to promote the mediation system in international trade disputes. However, this paper has limitation, for example, why ADR is not used well in Korea and need to suggest how ADR can work best in international trade disputes.

• Archives of Plastic Surgery
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• v.43 no.5
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• pp.402-410
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• 2016

Background In an increasing number of lawsuits doctors lose, despite providing preoperative patient education, because of failure to prove informed consent. We analyzed judicial precedents associated with insufficient informed consent to identify judicial factors and trends related to aesthetic surgery medical litigation. Methods We collected data from civil trials between 1995 and 2015 that were related to aesthetic surgery and resulted in findings of insufficient informed consent. Based on these data, we analyzed the lawsuits, including the distribution of surgeries, dissatisfactions, litigation expenses, and relationship to informed consent. Results Cases were found involving the following types of surgery: facial rejuvenation (38 cases), facial contouring surgery (27 cases), mammoplasty (16 cases), blepharoplasty (29 cases), rhinoplasty (21 cases), body-contouring surgery (15 cases), and breast reconstruction (2 cases). Common reasons for postoperative dissatisfaction were deformities (22%), scars (17%), asymmetry (14%), and infections (6%). Most of the malpractice lawsuits occurred in Seoul (population 10 million people; 54% of total plastic surgeons) and in primary-level local clinics (113 cases, 82.5%). In cases in which only invalid informed consent was recognized, the average amount of consolation money was KRW 9,107,143 (USD 8438). In cases in which both violation of non-malfeasance and invalid informed consent were recognized, the average amount of consolation money was KRW 12,741,857 (USD 11,806), corresponding to 38.6% of the amount of the judgment. Conclusions Surgeons should pay special attention to obtaining informed consent, because it is a double-edged sword; it has clinical purposes for doctors and patients but may also be a litigation strategy for lawyers.

• Journal of Digital Convergence
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• v.5 no.2
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• pp.99-108
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• 2007

As the transaction using mail order sales mediating sites such as Auction rapidly increase, consumer damages are also increasing. Therefore, in this study, the methods to remedy consumer damages occurring from transactions through mail order sales mediating sites such as the Payment Deposit System, the systems to resolve disputes without any litigation and the systems in relation to the Consumer Basic Act have been examined and measures to improve the systems have been groped. For the transactions using mail order sales intermediating sites, it is necessary to impose more responsibility on mail order sales mediators although the responsibility may not be required to be at the level of mail order sellers such as internet shopping malls. Therefore, institutional supports are necessary to effectively protect consumers in the transactions using mail order sales mediating sites and to induce damaged consumers to actively file claims for compensations. In relation to this, the Collective Dispute Mediation System and the Consumer Group Litigation System under the Consumer Basic Act may become good examples. The consumers who have been subject to the same or similar damages in the transactions using mail order sales mediating sites should also be allowed to participate in the Collective Dispute Mediation under the Consumer Basic Act or actively utilize the Consumer Group Litigation System. Also, it is desirable to reflect these systems on 'the Act on Consumer Protection in E-Commerce etc' so that these systems can also be directly applied to the transactions using mail order sales mediating sites.

• The Korean Journal of Archival Studies
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• no.43
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• pp.103-145
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• 2015

This study is intended to examine the present condition and management of Korean civil litigation between 1895 and 1905, during which the traditional korean legal system had undergone a significant reform until it was finally incorporated into the Japanese colonial counterpart. Civil litigation is important in historical archiving, in that we can understand archiving over time, the governing structure and our national identity. However at times we are not able to use them practically. The ultimate goal of preserving and maintaining the archives is to use them practically. The effective use of archives should be supported by their systematic management and access to a high standard. Therefore, the second main theme of this study is to propose to unveil civil litigation to the public for professional studies. Firstly, we should make a list of civil judgments from a management perspective. Secondly, we should inform people of the civil justice rulings through publicity activities such as contents creation, exhibition, documentary creation, education and so on. Thirdly, the historical archives of the civil litigations should be preserved apart form records. Fourthly, I should propose that we offer curriculum about interpreting and understanding history archives for strengthening of our expertise. Civil judgment of Guhanmal-Japanese is invaluable as it explains the history of our culture. Results of Conservation and utilization will be a valuable resource and invaluable to study.