• 한국중재학회지:중재연구
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• 제30권1호
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• pp.185-198
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• 2020

In the event of a medical conflict in South Korea, civil lawsuits can be very complicated, time-consuming, and costly. Under the Medical Conflict Conciliation Act, the mediation system has expanded its function to coordinate disputes between individuals and medical institutions in a more efficient manner prior to litigation. Currently, conflict mediation organizations and legal systems are established in each sector, and the Healthcare Dispute Settlement Commission will also play an important role in the public sector. In this study, the characteristics of the evaluation system of the Korea Institute of Medical Conflict Arbitration are examined; and, by looking at the case of medical examinations, it is proposed to show the mediation system and the manner and role of the examinations. Medical expertise is a very important area of the qualitative standards and expertise of participants because the participants must play a role in medical consultation and appraisal in connection with medical experts.

• 한국중재학회지:중재연구
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• 제30권2호
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• pp.43-68
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• 2020

The "arbitration" system resolves disputes through judgments on rights relations or claims between disputed parties by judging by private trial, but it does not have organizational and material bases to execute the contents of these judgments. Therefore, unless the parties succeed in voluntarily surrendering to the results of the arbitration award, the implementation of the award will be accomplished by the enforcement of the assistance of the National Court. However, unlike the court's ruling, the arbitration tribunal does not generate enforcement power from the judgment itself, and it must be filed with the court for execution. In this regard, Germany provides for arbitration proceedings in the Civil Procedure Act Volume 10. In particular, Article 1060 governs the approval and enforcement of domestic arbitral awards. Accordingly, the procedure for declaring the feasibility of domestic arbitration proceedings and the execution of forced execution are commenced. Regarding the enforceable declaration of a domestic arbitral award, it differs from the simpler process requirements compared to the procedure in a foreign arbitral award, and usually has the same effect as a final judgment between the parties without a separate approval procedure. However, the arbitration award does not constitute an enforceable power that can be implemented, but is enforced through the national court's declaration procedure. However, if there is a ground for cancellation as provided for in Article 1059 (2) of the German Civil Procedure Act, the arbitral award is canceled and the application for enforcement is dismissed.

• 한국중재학회지:중재연구
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• 제32권4호
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• pp.53-85
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• 2022

Small and medium-sized enterprises ("SMEs") are vulnerable to trade secret misappropriation. Korea's legislation for the protection of SMEs' trade secrets and provision of civil, criminal, and administrative remedies includes the SME Technology Protection Act, the Unfair Competition Prevention Act, the Industrial Technology Protection Act, the Mutually Beneficial Cooperation Act, and the Subcontracting Act. Among these acts, the revised SME Technology Protection Act of 2018 introduced the "administrative technology misappropriation investigation system" to facilitate a rapid resolution of SMEs' technology misappropriation disputes. On September 27, 2021, Korea's Ministry of SMEs announced that it had reached an agreement to resolve the dispute between Hyundai Heavy Industries and Samyeong Machinery through the administrative technology misappropriation investigation system. However, not until 3 years and a few months passed since the introduction of the system could it be used to resolve an SME's technology misappropriation dispute with a large corporation. So there arose a question on the usefulness of the system. Therefore, we conducted a comparative legal analysis of Korea's laws enacted to protect trade secrets of SMEs and to address technology misappropriation, focusing on their legislative purpose, protected subject matter, types of misappropriation, and legal remedies. Then we analyzed the administrative technology misappropriation investigation system and the cases where this system was applied. We developed a proposal to enhance the usefulness of the system. The expert interviews of 4 attorneys who are experienced in the management of the system to check the practical value of the proposal. Our analysis shows that the lack of compulsory investigation and criminal sanctions is the fundamental limitation of the system. We propose revising the SME Technology Protection Act to provide correction orders, criminal sanctions, and compulsory investigation. We also propose training professional workforces to conduct digital forensics, enabling terminated SMEs to utilize the system, and assuring independence and fairness of the mediation and arbitration of the technology misappropriation disputes.

• 한국중재학회지:중재연구
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• 제32권2호
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• pp.85-114
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• 2022

When human rights disputes are related to the cross-border investments treaties, the investment arbitral tribunals are confronted with the question of how to adjudicate connected human rights violations. The traditional structure restricts arbitration proceedings to the parties named within an investment treaty, i.e., Investor-Claimant and State-Respondent. If human rights issues occur, States must act as proxies for citizens with human rights claims. This effectively excludes individuals or groups with human rights concerns and contradicts the premise of international human rights law that seeks to empower human rights-holders to pursue claims directly and on an international stage. The methods for intorducing human rights issues in the context of investment arbitration proceedings are suggested as follows: First, human rights arguments can be introduced into ISDS by the usual initiator of investment disputes: the investor as the complainant. Especially, if the jurisdictional and applicable law clauses of the respective international investment agreements are sufficiently broad to include human rights violations, adjudicating a pure human rights claim could be possible. Second, the host state may rely on human rights argumentation as a respondent of an investor claim. Human rights have played a role as a justification for state measures undertaken to comply with human rights laws. Third, third party interventions by NGOs and civil society groups as amici curiae may act as advocates for affected populations or communities in response to the reluctance of governments to introduce their own human rights duties into the investment dispute. Finally, arbitrators have also referred to human rights ex officio, i.e., without having a dispute party referring to the specific argument. This was mainly the case in the context of determining the scope of property rights and the existence of an expropriation. As all U.N. member states have human rights obligations, international investment laws must be presumed to be in conformity with the relevant human rights obligations.

• 의료법학
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• 제11권1호
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• pp.11-52
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• 2010

Medical Dispute Arbitration Law had been debated on its legislation several times since Korean Medical Association's submission of the bill to the National Assembly in 1988, eventually in December, 2009, passed the National Assembly Standing Committee and was laid before the Legislation and Judiciary Committee, and thus its legislation is now near at hand. During the long process, it has provided a hot issue with our society. And yet, Medical Dispute Arbitration Law has differed considerably in legislative content depending on the main body of proceeding the enactment, which subsequently was given the mixed comments of 'Act on Malpractice-related Damage Relief' or 'Medical Indemnity Act', and this legislative bill also cannot be free from this debate. It is desirable that medical disputes between doctors and patients be resolved through conciliation between the parties concerned. But, because reaching a compromise is difficult owing to deep emotional conflicts between the parties, difficulties in investigating a cause and requiring a high amount of settlement money, etc., it is inevitable to seek a resolution by third party intervention. By the way, such an arbitration by third party is based on the compromise of the interested parties and thus has a limitation of not being able to satisfy both parties completely. Therefore, the legislative bill made for arbitration of medical disputes between the parties will have to prepare an institutional system for the parties to easily understand and accept. Also, problems occurred in the legislative bill will have to be corrected through an in-depth discussion in order for the legislative bill to work as an effective system.

• 무역학회지
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• 제42권2호
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• pp.29-52
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• 2017

물품매매계약은 매도인에 의한 물품 및 서류 인도의무의 이행을 통해 매수인에게 소유권을 이전하는 것이 목적이다. 그러나 국제물품매매에서 준거법으로 사용되는 CISG와 Incoterms에서는 소유권 이전에 관한 상세한 규정이 없기 때문에 각국의 국내법을 원용하고 있다. 따라서 본 연구는 한·중 물품매매에서 준거법으로 사용될 수 있는 CISG, Incoterms, 중국 합동법, 한국 민법의 규정적 차이점에 대한 인식 부족으로 인해 발생할 수 있는 분쟁을 예방하고, 한국기업의 대 중국 수출 확대에 기여하기 위하여 매도인의 물품인도의무와 관련하여 물품의 인도장소, 인도시기, 계약적합성과 서류인도의무에 대한 관련 규정들을 비교·분석하였다.

• 한국건설관리학회논문집
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• 제21권4호
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• pp.3-11
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• 2020

건설사업의 기획단계부터 설계단계에 미처 반영되지 못해 문제가 잠재되거나, 공사계약이행단계에서 다양한 변경요인이 있음에도 제대로 대처하지 못할 경우 건설계약과 관련하여 문제가 발생하게 된다. 그러므로 건설공사계약에는 반드시 분쟁의 해결절차를 명시하고 있다. 건설분쟁은 공공공사와 같이 대규모 건설현장 뿐만 아니라 소규모 민간건설현장에서도 발생되고 있다. 지금까지 우리나라에서는 건설분쟁의 해결절차개선과 관련하여 다수의 논의가 있었으나 건설분쟁해결절차와 관련된 문제가 근본적으로 해결되지 못하였다. 따라서 본 연구에서는 다음과 같은 사항을 제시하였다. 첫째, 가칭 건설분쟁조정법률을 제정하여 건설계약분쟁을 다룰 수 있는 가칭 건설분쟁조정중재원의 설립근거를 마련하고, 조정, 중재 등의 업무를 다루도록 해야 한다. 둘째, 민간 및 공공부문의 건설계약분쟁을 담당할 수 있도록 가칭 건설분쟁조정중재원의 업무는 현장협의체지원, 조정, 중재 등의 업무로 한정해야 한다. 셋째, 건설계약분쟁해결을 위해 계약체결시 조정이나 중재중 선택하도록 하고, 계약이행중에는 현장협의체를 운용하도록 해야 한다. 넷째, 분쟁처리기구는 상설기구로 하고, 전국 각지에 지부를 운영해야 한다. 다섯째, 다양한 영역의 건설전문가들을 위원으로 참여시켜 신속하게 건설계약분쟁이 처리될 수 있도록 해야 한다. 마지막으로, 건설계약분쟁처리기구의 단일화와 함께 건설분쟁처리절차를 명시하고 있는 관련법령을 개정해야 한다.

• 한국중재학회지:중재연구
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• 제13권2호
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• pp.459-488
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• 2004

General interest in the out-of-court dispute resolution system are mounting in Korea, and the spread of ADR(alternative dispute resolution) is the worldwide trend. In addition, it was confirmed that the resolution of disputes by ADR such as the decision based on arbitration made by the Prime Ministerial Administrative Decision Committee is no longer in exclusive possession of the civil case. The activation of ADR could lead to the smooth agreement between parties by getting away from the once-for-all mode of decision such as the dismissal of the application or the cancellation of disposal and the like in relation to administrative cases for the years. In consequence, it is anticipated that the administrative litigation that applicants have filed by not responding to the administrative decision would greatly reduce in the future. But, it would be urgent to provide for the legal ground of the ADR system through the revision of related laws to take root in our society because ADR has no legal binding power relating to the administrative case due to the absence of its legal grounds. The fundamental reason for having hesitated to introduce ADR in relation to the administrative case for the years is the protective interest of the third party as well as the public interest that would follow in case the agreement on the dispute resolution between parties brings the dispute to a termination in the domain of the public law. The disputes related to the contract based on the public law and the like that take on a judicial character as the administrative act have been settled within the province of ADR by applying the current laws such as the Civil Arbitration Law, Mediation Law, but their application to the administrative act of the administrative agency that takes on a character of the public law has been hesitated. But as discussed earlier, there are laws and regulations that has the obscure distinction between public and private laws. But there is no significant advantage in relation to the distinction between public and private laws. To supplement and cure these defects it is necessary to include the institutional arrangement for protection of the rights and benefits of the third party, for example the provision of the imposition of the binding power on the result of ADR between parties, in enacting its related law. It can be said that the right reorganization of the out-of-court dispute resolution system in relation to the administrative case corresponds with the ideology of public administration for cooperaton in the Administrative Law. It is high time to discuss within what realm the out-of-court dispute resolution system, alternative dispute resolution system, can be accepted and what binding power is imposed on its result, not whether it is entirely introduced into the administrative case. It is thought that the current Civil Mediation Law or Arbitration Law provides the possibility of applying arbitration or mediation only to the civil case, thereby opening the possibility of arbitration in the field of the intellectual property right law. For instance, the act of the state is not required in establishing the rights related to the secret of business or copyrights. Nevertheless, the disputes arising from or in connection with the intellectual property rights law is seen as the administrative case, and they are excluded from the object of arbitration or mediation, which is thought to be improper. This is not an argument for unconditionally importing ADR into the resolution of administrative cases. Most of the Korean people are aware that the administrative litigation system is of paramount importance as the legal relief for administrative cases. Seeing that there is an independent administrative decision system based on the Administrative Decision Law other than administrative litigation in relation to administrative cases, the first and foremost task is the necessity for the shift in thinking of people, followed by consideration of the plan for relief of the rights through the improvement of the administrative decision system. Then, it is necessary to formulate the plan for the formal introduction and activation of ADR. In this process, energetic efforts should be devoted to introducing diverse forms of ADR procedures such as settlement conference, case evaluation, mini-trial, summary jury trial, early neutral evaluation adopted in the US as the method of dispute resolution other than compromise, conciliation, arbitration and mediation

• 한국중재학회지:중재연구
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• 제28권2호
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• pp.111-135
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• 2018

As the disputes in the investment and civil/commercial sectors of China and Taiwan have increased due to active cross-strait economic exchanges, the Chinese government is addressing cross-strait disputes through various dispute resolution methods. In recent years, the Arbitration Center Across the Straits (ACAS) has been established to resolve disputes between cross-strait parties, while ACAS Arbitration Rules have been enacted and enforced. ACAS Arbitration Rules are prepared by referring to the Arbitration Act of China and Taiwan, the relevant provisions and practices of the China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules and the cross-strait practical affairs of the China International Economic and Trade Arbitration Commission, and the cross-strait practical affairs giving consideration to the specificity of the cross-strait relationship and the characteristics of economic and trade disputes. Therefore, this paper has compared the features and main contents of the ACAS Arbitration Rules with those of the CIETAC Arbitration Rules. This refers to arbitration proceedings such as form and effect of arbitration agreement, decision of place of arbitration, and organization of arbitral tribunal; the provision of consolidation of multiple contracts and arbitration, and the provision of joinder of arbitration parties, which are implementing the "principle of party autonomy" with streamlining arbitration proceedings and reducing costs; "common, simple, and small sum arbitration proceedings which require shorter arbitration proceedings depending on the size of the arbitration object; and regulations on the "interconnection of mediation and conciliation" which is characteristic of China's arbitration system. Based on the above-mentioned main contents of the ACAS Arbitration Rules in China, there are some implications to be considered in the establishment of the Arbitration Rules of the South-North Commercial Arbitration Commission which will be applied to solve commercial and investment disputes arising from the Inter-Korean Economic Cooperation process, suggesting implications such as the need for the rapid composition and operation of the South-North Commercial Arbitration Commission, requirements for selecting arbitrators, expansion of the object of arbitration, specification of concreteness in deciding the place of arbitration, need to create a variety of arbitration proceedings, and application plan of the International Center for Settlement of Investment Dispute (ICSID) or Third Power Arbitration Agency.

• 한국중재학회지:중재연구
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• 제13권2호
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• pp.103-122
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• 2004

Recognition and enforcement of the arbitral award play an important role in the settlement of the international commercial disputes. The New York Convention makes it a duty for the courts of signatories to recognize and enforce the foreign arbitral awards not taking the nationality of the party concerned into consideration. Recognition and enforcement of the arbitral award may be refused if the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. The arbitral award has the same force as an irrevocable judgement including effect of excluding further litigation, its execution and formation. But the effect of set aside arbitral award made abroad in arbitral place was denied by France court for the interest of his people. There is no arbitral act but arbitral procedure is regulated by New Code of Civil Procedure in case of France. An appeal against the decision which grants recognition or enforcement is open if the recognition or execution is contrary to international pubic policy in virtue of Art. 1502. Arbitrator may consider compulsory provisions in arbitral place to assure to recognition and enforcement of the arbitral award.