• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.58
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• pp.215-236
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• 2013

It is quite true that the more Korean contractors receive overseas contracts, the more they need guarantees. The top market for them is the Middle East countries, consisting of more than the half of the total amount awarded last year and the trend is increasing as well. The problem, however, is that employers in these countries are reluctant to use international rules for guarantee such as URDG or ISP98 and easily make unfair callings. However, Korean contractors(applicants), especially small and medium sized enterprises(SMEs) tend to hurriedly enter a contract without looking into its contents as well as guarantees. They do not realize the importance of the guarantees until they receive callings from the employers(beneficiaries). Being independent from the underlying contracts, guarantee is the equivalent to cash in that it usually does not require any proof of demand when calling and the guarantor should make a payment within usually 5 business days after the request. It is often observed these days that several Korean SMEs go bankrupt due to liquidity risks after receiving unfair callings from employers in the Middle East countries. In retrospect, some cases could be obviated if contractors were a little more careful in checking the contents of a guarantee at the time of concluding a contract. For example, there is one case where the underlying contract includes a reduction clause in the Advance Payment bond and the guarantee does not have that clause. In the end, the Korean contractor had to take the whole burden of the bond amount though it had finished 81% of the project. Nobody could argue that contractors should take a full responsibility if they fail in their obligations. However, the employer's wrongful callings need to be prevented in the first place, if possible. As there shouldn't be a case where one party is at a disadvantage against the other like the case mentioned above, useful insight is being sought to minimize unfair calling risks for the benefit of the applicant. First, the applicant should carefully look into every detail of the potential guarantee before signing a contract, heeding especially that there is a reduction clause in the AP bond. Second, the governing principles for guarantee should be the ones that are internally used such as URDG758 that is objective in terms of callings given that, for example, it specifies that the requirement for a supporting statement when making a demand is a default rule. It is also recommended that the form of guarantees be the standard demand guarantee. Third, parties involved in issuing guarantees are advised to understand international rules for guarantee like URDG758 and ISP98 and to play a key role in guiding SME contractors in Korea so that they can protect themselves from possible wrongful callings, particularly from employers in the Middle East countries. I hope this study would give a wake-up call for Korean SMEs wishing to do business in the Middle East countries and remind them of the importance of guarantee itself and its governing principles.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.42
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• pp.337-364
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• 2009

Trade remedy is the system that additional duty or import quantity restriction would be imposed on the import products, in case that unfair imports damage domestic industry or even proper import products damage significantly domestic industry. The system is secured by the act of unfair trade practice investigation & industrial damage remedy, tariff act, WTO agreement. Anti-dumping duty act is the system that duties are assessed with the equal or less amount of the difference between normal transaction price and dumping price, in case that the product imported under dumping price causes or may cause damages in domestic industry, or the development of domestic industry should be delayed practically. Recently, the problems related with anti-dumping duty imposed as the part of the trade remedy occur frequently. It is necessary to discuss whether the anti-dumping duty act is practically trade remedy which does comply with GATT regulations and WTO agreements as the criteria of international law and is in line with the intent of domestic act in the suffered country, or it does return to protective trade or reduce the protection of consumer. On the basis of this discussion, it would be difficult to impose the antidumping duty on industrial products in order to protect domestic industry, when considering the expected free trade agreements of Korea-US, Korea-China and Korea-Japan. In order to survive under the current severe competition of world trade market, companies should raise the competitiveness by themselves without relying on the current trade acts to provide with a certain protection. This thesis should bring those attentions.

• Journal of Arbitration Studies
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• v.13 no.2
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• pp.321-351
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• 2004

According to increase of Franchise Agreements, troubles related to those agreements and trading acts occur frequently. As Franchise system had come from Western countries, franchise agreement troubles tend to international disputes. In fact, those parties entered into a franchise agreement prefer arbitration to lawsuit as a dispute resolution system because arbitration is easy to risk-management for cost and time. The essential conditions for Franchise agreements are as follows ; for Franchise to grant Intellectual Properties to Franchisee, to give an impression of the same company between Franchise and Franchisee, to control and support Franchisee, for Franchisee to be an independent merchant, and to pay Franchiser license fee. Because Franchise Agreement is also based on liberty of contract, Franchise and Franchisee could enter into any kind of agreement. However, Franchiser can make an unfair agreement abusing a position of advantage. This paper check those unfair terms and conditions in Franchise agreement. Once they enter into an agreement, they should fulfil their contract. In case of trouble on performing the contract, both of them have to discuss to solve that trouble faithfully. But, they enter into either lawsuit or arbitration in accordance with agreement when they can't reach a decision in general. Specially, which is the most popular dispute resolution hands in case of Intellectual Property License agreement. General international Franchise Agreements have arbitration terms, but there is other case such as separate Arbitration Agreement if the want, which is separate from Franchise License agreement, so even though Franchise License agreement is invalidated, Arbitration agreement continues to exist, This paper reviews Franchise system and the terms of arbitration in Franchise agreement.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.46
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• pp.133-158
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• 2010

Independent guarantee is a creation of the need from the both sides, i.e. the applicant (principal debtor) and the beneficiary (creditor). The former used to have to deposit cash in favor of the beneficiary in case of his default, which laid a burden on his liquidity while the latter still wanted to have the equivalent to cash. Independent guarantee satisfied the both parties by freeing the applicant of a deposit and maintaining the beneficiary's right at the same time. The fact that independent guarantee has three payment mechanisms is not widely known to the public. They are (i) payment on first demand, (ii) payment upon submission of third-party documents, (iii) payment upon submission of an arbitral or court decision. From the applicant's point of view, the order in his favor is (iii), followed by (ii) and (i). As there shouldn't be a case where one party is at a disadvantage against the other, useful insight is being sought for the benefit of the applicant. First, the applicant can offer his intention to provide a payment mechanism (ii) or (iii) rather than (i) if he must deliver it. Second, if the beneficiary still wants to have (i) and the applicant is in a position not to reject it, the latter should thoroughly check any provisions that may work against him later. Third, the applicant could use counterbalancing provisions in underlying contract to cope with protective clauses in the guarantees. Forth, the applicant should review the beneficiary's sincerity to prevent unfair calling risks. The applicant may use an ECA(Export Credit Agency) in his country to which he can transfer not only unfair calling risks, but also political risks. On the other hand, a bank needs to keep the following advice in mind. The foremost important thing for the bank not to forget is that it provides a guarantee as a service provider, not as a responsible party for the feasibility of the project, etc. Credit risk of the applicant should require the greatest attention when issuing a guarantee: the bank should look into the possibility that it can procure immediate reimbursement from its customers after payment to the beneficiary. Second, the applicant's ability to complete the project should be reviewed by checking its track records, techniques and reputation, etc. Third, the bank may also use an ECA to cover the beneficiary's unfair calling risks as well as political risks. In the case of Korea, as Korea Export Insurance Corporation(KEIC) can cover all the risks mentioned above, the bank could use its service called 'Export Bond Insurance.' What's better for the bank is that ECA cover can enhance the bank's asset quality by putting it zero on its risk weighted asset.

• Journal of Research and Publication Ethics
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• v.1 no.2
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• pp.11-13
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• 2020

Purpose: The author wants to specify scope of research, identify without giving burden, prevent unfair identification of the author, admit of production of the outcome, enact rules of identification, and build up foundation of development. Also, this study defines scope of publication of outcome of research to prevent unfair identification of authors and admit of them. Research design, data and methodology: The study described literary research, standard research, phenomenon research, and empirical result without methodologies, statistical analysis and scientific test and investigated operation system of KODISA cases. Results: At publication of findings of the research, researchers shall identify the ones of production of the finding to allocate help of the research. Conclusions: Scientific journals shall be controlled to develop ability and to grow up and have a system. Researchers shall give direction of other scientific journals. The study made efforts to be a model. KODISA Edition Team shall make an effort to keep and develop. So far, no regulation of identification of authors has produced disturbance so terminologies should be uniformed. Researchers shall keep rules of identification of authors to uniform and regulate identification of authors, conditions of authors, and order and correspondent authors. KODISA enacted rules of identification of authors for the first time in Korea to develop science.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.39
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• pp.59-85
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• 2008

An independent bank guarantee(aka an independent guarantee) is provided as an security on a principal obligor's performance of his obligation, and a guarantor should pay the guaranteed amount only upon a beneficiary's written demand. A standby letter of credit has been used in the United States, since it was construed that a bank should not issue a guarantee. There was wide misunderstanding that a standby letter of credit differs from an independent bank guarantee. However, a standby letter of credit is the same security as an independent bank guarantee, and in international business a standby letter of credit is not differentiated from a independent bank guarantee. An independent bank guarantee are independent from the underlying contract, unconditional, and irrevocable. And a guarantor should pay upon written demand without proving a principal obligor breaches the underlying contract. These features of an independent bank guarantee has been abused in international transactions. Thus it has been proposed that some exceptions to the features of an independent bank guarantee should be allowed. United Nations Convention on Independent Guarantees and Standby Letter of Credit(1995) stipulates some exceptions to payment obligation. Export bond insurance, a part of export insurances, operated by the Korea Export Insurance Corporation under the Export Insurance Act, is used as a security for unfair calling by a beneficiary under an independent bank guarantee. Most of the export subsides by the government are prohibited under WTO's Agreement on Subsidies and Countervailing Measures. However, as export insurance is allowed under the WTO, it operates a significant role in enhancing the export. In the event that export bond insurance is provided for a guarantor, an obligor who is subject to recourse by a guarantor, can be exempt from the recourse in case of unfair calling. The Korea Export Insurance Corporation, an insurer, bears unfair calling risk by a beneficiary. Generally it is understood that a demand shall be made before the expiry of an independent bank guarantee. However this is not absolutely true, it shall be decided by URDG, ISP98, the governing law.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.49
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• pp.139-164
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• 2011

Traditionally courts have been adopted over the years two standards of dealing with compliance of documents such as strict compliance and substantial compliance and the substantial compliance, which was somewhat less demanding than the strict compliance. However the new guidelines of ICC's international standard banking practice for the examination of documents under documentary credits set up how the UCP is to be applied in practice. The payment obligations of an issuing bank to a beneficiary are independence of the performance or the nonperformance of any contract underlying the letter of credit. However, strictly applying the principle of independence and abstraction could produce unfair results by operating unjustly enrich an unscrupulous beneficiary in case of fraud. Accordingly, when a beneficiary presents complying documents, the issuing bank is bound to honour the presentation unless the fraud rule applies on the facts of the case such as forged or material fraud. If it does, the issuing bank(issuer) needs not pay despite the complying presentation of documents by the beneficiary under the Uniform Commercial Code Article 5-109 and case law in America. However the fraud rule was not addressed in UCP 600. In conclusion, view in terms of legal principle and the court cases is variable and difficult to honour or dishonour the presentation in case of application of the independence principle and fraud rule such as the problems on burden of proof timely, possibility of granting injunction in order to protect against victim for bona fide applicant.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.15
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• pp.169-209
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• 2001

As a domain name can be registered simply by filing an application for registration, disputes over the domain name between the holder of domain name and the holder of trademark increased. Since the holder of trademark who was late for registering domain name is willing to pay for the return of domain name, cybersquatters increased. Cybersqatters are not genuine users of the Internet. This article is to compare the construction of law by American Courts and by Korean Courts and to assert the creation of the law similar to the law of US as to anti-cybersqatting. American Courts applied the Trademark Act and the Anti-Dilution Act to resolve the disputes over domain name. To apply the Trademark Act, the Court required the plaintiffs to prove that the goods or the services expressed by the domain name should be identical or similar to the goods or the services represented by the trademark. However, there were many cases where the holder of domain name used it for the goods or the services irrelevant to those of the holder of trademark. Also, the Anti-Dilution Act could not successfully protect the holder of trademark from cybersquatters because it required that the trademark should be famous or distinctive. As a result, the US promulgated a new law which is designed to prohibit cybersquatters from being free of sanction by the existing laws. Korea Courts applied the Trademark Act and the Unfair Competition Prohibition Act to the cases disputing domain name. Likewise in the US, Korean Courts must cope with the issue of identity of the goods or the services, and the famousness or distinctiveness of trademark. The Courts hesitate to give a winning judgement to the holder of trademark simply because the domain name of alleged violator confused the trademark. Some scholars advocate the broadening of construction of the Unfair Competition Prohibition Act to illegalize cybersquatting but it is beyond the meaning of the law. Accordingly, it is a time to make a law similar to the Anti-Cybersquatting Act of the US. The law must be a fair and reasonable compromise to resolve the collision between system of registration of domain name and the system of registration of trademark. Some commentators advocate that the registration of domain name should be examined just as the one of trademark and to facilitate it, the Patent and Trademark Office should have jurisdiction of registration of domain name. But it abandons the distinction of domain name and trademark and results in obstructing e-commerce. By adopting the Anti-Cybersqatting Act, we can prohibit it. In other cases, we get a reasonable adjustment between the holder of domain name and the holder of trademark through the Trademark Act and the Unfair Competition Prohibition Act.

• Industry Promotion Research
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• v.9 no.2
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• pp.29-35
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• 2024

Recently, the Korean financial market has implemented a ban on unleveraged short selling, and leveraged short selling, which involves selling borrowed securities, is called general short selling. This study sought to come up with improvement measures to revitalize short selling from the perspective of individual investors. Short selling refers to selling stocks you do not own in the stock market, predicting that the stock price of the stock will fall, and borrowing stocks to sell them. Based on the results of this study, the short selling market's growth and improvement plans are as follows. First, a plan must be developed to expand short selling opportunities for individual investors. In the domestic short selling market, including KOSPI and KOSDAQ, foreign and institutional participants account for more than 95% of the market, and individual investors are very small. Therefore, its expansion is inevitable. Second, monitoring and punishment for unfair short selling transactions must be strengthened. Representative improvement measures that can minimize the side effects of short selling include strengthening monitoring of unfair trading and short selling, and raising the level of punishment. In addition, measures must be taken to further increase the level of punishment for short selling related to unfair transactions. Third, the short selling reporting and disclosure system needs to be improved. In the case of Korea, short selling transactions are not yet as active as in developed countries, but there is a need to expand the disclosure system to strengthen market transparency in preparation for future short selling transactions becoming more active. In conclusion, it is reported that if short selling regulations are excessively strengthened, losses may occur in terms of price efficiency and market liquidity, which may ultimately have a negative impact on the market. Therefore, policies related to short selling must be made while taking into account the positive aspects of regulatory effects and the negative impact on the market.

• The Korean Journal of Franchise Management
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• v.2 no.1
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• pp.119-133
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• 2011

The objective of this study is to establish the basic concepts for franchise agreements in consideration of both theoretical and practical conditions, to set the parameters for the discussion regarding the practical business matters pertaining to franchise agreements, and to analyze the criteria for determining the illegality of unfair trade practices based on research into actual practices in franchise transactions and on case studies of the implementation of laws by the Fair Trade Commission. The study aims to thereby contribute to the stabilization of laws in franchise transactions, benefiting all parties including franchise-related institutions, participants in franchise transactions, and related consumers. In conclusion, even in cases where regulatory exceptions are applied within the Fair Franchise Transactions Act when determining the illegality of franchised businesses, it is impossible to eliminate illegality unless all necessary and sufficient conditions have been included, and even if the procedure for evading illegality has been undertaken, illegality may not be eliminated unless the contents thereof are legitimate.