• Proceedings of the Korea Institute of Fire Science and Engineering Conference
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• 2013.11a
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• pp.187-188
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• 2013

실화책임법에 의하면, 화재 발생 시 실화자는 중대한 과실이 아닌 경우 경제적요건, 화재원인 등에 따라 손해배상액의 경감을 청구할 수 있다. 손해배상액의 경감의 여부는 실화피해자의 화재복구에 영향을 끼치게 된다. 화재발생 시 실화자가 손해배상경감청구에 책임을 입증하여야한다. 그리고 실화피해자의 원활한 화재복구를 위해 실화자의 화재보험가입의 의무와 계약자의 안전한 보호 및 보험사의 책임 일부를 분산하는 제도인 재보험의 선택적 가입을 규정하고자 한다.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.63-84
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• 2016

Article 77 of CISG requires an aggrieved party, the promisee, claiming damages to take reasonable measures to mitigate losses. The reasonable measures required hereunder are limited to those that can be expected under the circumstances having regard to the principle of good faith. When taking such measures, the aggrieved party must do so within a reasonable time under the circumstances. The expenses incurred in taking such measures are recoverable from the promisor. If the aggrieved party fails to do so, the damages recoverable from the promisor are reduced in the amount the loss that should have been mitigated. The aggrieved party's duty to mitigate damages applies to claim for damages only. That is, the violation of this duty should not be invoked against other remedies available under CISG, such as the right to claim specific performance, the right to claim for the price or the right of reduction of price. In practice, under the provision of article 77, the aggrieved party, the seller or the buyer, is often required to enter into a substitute transaction as a measure to mitigate losses and many cases involving a substitute transaction are internationally reported. Therefore this paper intends to provide a certain understanding of the aggrieved party's duty to take measures to mitigate losses based on such cases reported.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.66
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• pp.1-23
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• 2015

A party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach. Appropriate measures are those aimed at lessing the loss as far as reasonably possible. Such measures will typically be a resale of the goods by the seller or a cover purchase by the buyer. The measures the injured party is expected to take in order to mitigate the loss must be reasonable in the circumstances. Article 77 will be applied to the difference between the amount by which the loss should have been mitigated under Article 77. A reduction of damages is the only remedy available to the party in breach in cases covered by Article 77. If the buyer has received the goods and intends to exercise any right under the contract or this Convention to reject them, he must take such steps to preserve them as are reasonable in the circumstances. If goods dispatched to the buyer have been placed at his disposal at their destination and he exercises the right to reject them, he must take possession of them on behalf of the seller. Article 86(1) requires that the buyer manifest his intention at the moment of receipt of the goods. Article 86(2) envisages that the goods have been dispatched to the buyer and that they have been placed at his disposal at their destination. Article 87 allows him to deposit them in the warehouse of a third person. It is not necessary that the warehouse by public, or that it be a general warehouse for storage. A party who is bound to preserve the goods in accordance with articles 86 may sell them by any appropriate means taking possession of the goods or in taking them back or in paying the price or the cost of preservation. If the goods are subject to rapid deterioration or their preservation world involve unreasonable expense, a party who is bound to preserve the goods must take reasonable measures to sell them. A difference exists between paragraph Article 88 (1) which grants the right to sell, and paragraph (2 )which imposes the duty to take reasonable measures to sell the goods. According to Article 88(2), the party who wishes to sell must give notice to the other party of such intention, to the extent possible.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.62
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• pp.3-32
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• 2014

Article 77 sets forth the principle of prevention applied in several legal systems. Under this principle the party threatened by ooss as a consequence of a breach of contract by the other party is not permitted to await passively incurrence of the loss and then sue for damages. He is obliged to take adequate preventive measures to mitigate his loss. If the injured party abstains from taking such excessive measures he will not be considered to have failed to mitigate the loss under Article 77. The sanction provided in Article 77 against a party who fails to mitigate his loss only enables the other party to claim reduction in the damages. The reduction in damages under Article 77 is equal to the amount by which the loss should have been mitigated if the injured party had taken reasonable measures to avert or to lessen it. The aim of Article 77 is to encourage mitigation of the loss. The duty to mitigate the loss applies not only to a breach of contract in respect of an obligation whose performance is currently due. but also to an anticipatory breach of contract under Article 71. Article 85 contemplates that the buyer is in delay in fulfilling the latter obligation, or else that he fails to pay the price when payment is to be made concurrently with delivery of the goods by the seller. In both these situations of default, the seller who is either in possession of the goods or otherwise able to control their disposition must take measures, reasonable in the circumstances, to preserve them. The right of retention of the goods y the seller exists until he is reimbursed by the other party for the reasonable expenses incurred. Article 87 and Article 88 of the Convention grant different rights to the party obligated to take steps to preserve the goods; Article 87 allows him to deposit them in the warehouse of a third person, and Article 88 to sell them by whatever means appropriate. A difference exists between paragraph Article 88 (1) which grants the right to sell, and paragraph (2) which imposes the duty to take reasonable measures to sell the goods.

• Journal of radiological science and technology
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• v.30 no.4
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• pp.305-311
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• 2007

Contrast medium is a useful drug for radiological examinations and usability of it gradually increases while it has some inevitable adverse reaction and it is difficult to predict the occurrence and the degree of adverse reactions. Although the patient consented permission for the use of contrast media, the hospital could not be exempted from the responsibility for the adverse contrast media reaction. During radiological contrast media examination, the radiologist and the contrast media producer have the duty of precaution, prediction and avoid adverse results. In addition, they have reliabi lity of patient remedy for neglecting the duty. Since contrast medium are manufactured or processed as movable properties, the manufacturers are bound to the product liability if damages occur due to the defects in pharmaceuticals. In consideration of the characteristics of product liability, it is necessary to demand high degree of duty of care and diligence from producer or to reduce patient's burden of proof in a product liability lawsuit. For securing compensation ability and liability implementation, products compensation liability insurance is required for contrast medium manufacturers. In conclusion, contrast medium producer has legal liability for adverse reactions and the contract concluded with producer and hospital including legal liability will reduce liability of hospital and radiologist, patient.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.55
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• pp.3-32
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• 2012

CISG article 74 establishes the general formula applicable in all cases where an aggrieved party is entitled to recover damages. It provides that damages for breach of contract comprise all losses, including loss of profits, caused by the breach, to the extent that these losses were foreseeable by the breaching party at the time the contract was concluded. An aggrieved party may claim under article 74 even if entitled to claim under article 75 or 76. The latter articles explicitly provide that an aggrieved party may recover additional damages under article 74. Articles 75 and 76 apply only in cases where the contract has been avoided. Article 75 measures damages concretely by reference to the price in a substitute transactions, while article 76 measures damages abstractly by reference to the current market price. Article 76 (1) provides that an aggrieved party may not calculate damages under article 76 if it has concluded a substitute transaction under article 75. If however, an aggrieved party concludes a substitute transaction for less than the contract quantity, both articles 75 and 76 may apply. Pursuant to article 77, damages recoverable under articles 74, 75 or 76 are reduced if it is established that the aggrieved party failed to mitigate losses. The reduction is the amount by which the loss should have been mitigated. Article 78 entitles a party to interest on the price and any other sum that is in arrears.

• The Korean Society of Law and Medicine
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• v.22 no.2
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• pp.49-79
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• 2021

Due to defendant's wrongful act by implant surgery, plaintiff has been suffered serious damages to his face and teeth, and pain caused by establishing implanted teeth. Jeonju Appellate Court sentenced to pay future medical expenses and alimony to the plaintiff in compensation for breach of duty or torts. The ruling is designed to relieve the burden of proof because it is extremely difficult for non-experts to determine whether dentists violated their 'duty of care' or whether there was a causal relationship between damages to medial treatment. It was judged that if symptoms that contributed to the patient's significant outcome occurred during or after surgery, such symptoms could be presumed to have been caused by medical negligence if indirect facts were proven to be other than medical negligence. Originally, the shifting of burden of proof in Germany, has already been developed in medical malpractice case since 1940s. In order to guarantee the patients' right, §630h German Civil Code (BGB) - presumption of negligence in the realization of controllable risk- has been also legislated. BGH (Bundesgerichtshof) has been interested in ensuring that the principle of equality between patients and doctors. So, in this study, we wanted to refer to German precedent cases to analyzing Korean medical malpractice lawsuit. In particular, the decision could be significant in that it approaches closer to allows the shifting burden of proof in drastically growing dental malpractice cases. This is clearly confirmed in the judgment of the dentist's "fault" that "if indirect facts about the symptom or occurrence are proven to be cause other than medical negligence, such symptoms can be presumed to be due to medical negligence."

• Journal of the Society of Disaster Information
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• v.9 no.2
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• pp.178-187
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• 2013

This paper studied the potential risk of high-rise apartment by analysis of the loss ratio of housing fire insurance, statistics related high-rise apartment fire, and the insured amount of housing fire insurance, and, found that it is so high and need the improvement of risk management measures for high-rise apartment. Accordingly, the study recommend the composit risk management measures including preventing of fire expanding for higher stories, a shelter for people of hire-rise apartment, and sprinkler protection, etc. Also as risk transfer measures, the composit risk measures for high-rise apartment includes the full insurance of housing fire insurance, third party property liability insurance, and development of endorsement for special risk such as a typhoon, liability etc.

• The Korean Journal of Air & Space Law and Policy
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• v.28 no.2
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• pp.295-347
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• 2013

Korea launched the science satellite by the first launch vehicle Naro-ho(KSLV-1) at the Naro Space Center located at Oinarodo, Cohenggun Jellanamdo in August, 2009 and October, 2010. However, the first and second launch failed. At last, on January 30, 2013 the third launch of the launch vehicle Naro-ho has successfully launched and the Naro science satellite penetrated into the space orbit. Owing to the succeed of the launch of Naro-ho, Korea joined the space club by the eleventh turn following the United States, Russia, Japan and China. The United Nations adopted the Outer Space Treaty of 1967, the Rescue Agreement of 1968, the Liability Convention of 1972, the Regislation Convention of 1976, and Moon Agreement of 1979. Korea ratified the above space-related treaties except the Moon Agreement. Such space-related treaties regulate the international liability for the space activity by the launching state of the space object. Especially the Outer Space Treaty regulates the principle concerning the state's liability for the space activity. Each State Party to the Treaty that launches or procures the launching of an object into outer space is internationally liable for damage to another State Party or to its natural or judicial persons by such object or its component parts on the earth, in air space or in outer space. Under the Liability Convention, a launching state shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight. The major nations of the world made national legislations to observe the above space-related treaties, and to promote the space development, and to regulate the space activity. In Korea, the United States, Russia and Japan, the national space-related legislation regulates the government's liability of the launching state of the space object. The national space-related legislations of the major nations are as follows : the Outer Space Development Promotion Act and Outer Space Damage Compensation Act of Korea, the National Aeronautic and Space Act and Commercial Space Launch Act of the United States, the Law on Space Activity of Russia, and the Law concerning Japan Aerospace Exploration Agency and Space Basic Act of Japan. In order to implement the government's liability of the launching state of space object under space-related treaties and national legislations, and to establish the standing as a strong space nation, Korea shall improve the space-related policy, laws and system as follows : Firstly, the legal system relating to the space development and the space activity shall be maintained. For this matter, the legal arrangement and maintenance shall be made to implement the government's policy and regulation relating to the space development and space activity. Also the legal system shall be maintained in accordance with the elements for consideration when enacting the national legislation relevant to the peaceful exploration and use of outer space adopted by UN COPUOS. Secondly, the liability system for the space damage shall be improved. For this matter, the articles relating to the liability for the damage and the right of claiming compensation for the expense already paid for the damage in case of the joint launch and consigned launch shall be regulated newly. Thirdly, the preservation policy for the space environment shall be established. For this matter, the consideration and preservation policy of the environment in the space development and use shall be established. Also the rule to mitigate the space debris shall be adopted. Fourthly, the international cooperation relating to the space activity shall be promoted. For this matter, the international cooperation obligation of the nation in the exploration and use of outer space shall be observed. Also through the international space-related cooperation, Korea shall secure the capacity of the space development and enter into the space advanced nation.

• The Korean Journal of Air & Space Law and Policy
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• v.28 no.2
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• pp.223-258
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• 2013

1967 Outer Space Treaty(Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies; OST) is a treaty that forms the basis of international space law. OST is based on the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space announced by UNGA resolution. As of May 2013, 102 countries are states parties to OST, while another 27 have signed the treaty but have not completed ratification. OST explicitly claimed that the Moon and Other Celestial Bodies are the province of all mankind. Art. II of OST states that "outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means", thereby establishing res extra commercium in outer space like high seas. However 1979 Moon Agreement stipulates that "the moon and its natural resources are the Common Heritage of Mankind(CHM)." Because of the number of the parties to the Moon Agreement(13 parties) it does not affect OST. OST also established its specific treaties as a complementary means such as 1968 Rescue Agreement, 1972 Liability Convention, 1975 Registration Convention. OST bars states party to the treaty from placing nuclear weapons or any other weapons of mass destruction in orbit of Earth, installing them on the Moon or any other celestial body, or to otherwise station them in outer space. It exclusively limits the use of the Moon and other celestial bodies to peaceful purposes and expressly prohibits their use for testing weapons of any kind, conducting military maneuvers, or establishing military bases, installations, and fortifications. However OST does not prohibit the placement of conventional weapons in orbit. China and Russia submitted Draft Treaty on the Prevention of the Placement of Weapon in Outer Space and of the Threat or Use of Force against Outer Space Objects(PPWT) on the Conference on Disarmament in 2008. USA disregarded PPWT on the ground that there are no arms race in outer space. OST does not have some articles in relation to current problems such as space debris, mechanisms of the settlement of dispute arising from state activities in outer space in specific way. COPUOS established "UN Space Debris Mitigation Guidelines" based on "IADC Space Debris Mitigation Guidelines" and ILA proposed "International Instrument on the Protection of the Environment from Damage Caused by Space Debris" for space debris problems and Permanent Court of Arbitration(PCA) established "Optional Rules for Arbitration of Disputes Relating to Outer Space Activities" and ILA proposed "1998 Taipei Draft Convention on the Settlement of Space Law Dispute" for the settlement of dispute problems. Although OST has shortcomings in some articles, it is very meaningful in international law in considering the establishment of basic principles governing the activities of States in the exploration and use of outer space, including the Moon and Other Celestial Bodies. OST established the principles governing the activities of states in the exploration and use of outer space as customary law and jus cogens in international law as follows; the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind; outer space shall be free for exploration and use by all States; outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. The principles of global public interest in outer space imposes international obligations erga omnes applicable to all States. This principles find significant support in legal norms dealing with following points: space activities as the "province of all mankind"; obligation to cooperate; astronauts as envoys of mankind; avoidance of harmful contamination; space activities by States, private entities and intergovernmental organisations; absolute liability for damage cauesd by certain space objects; prohibition of weapons in space and militarization of the celestial bodies; duty of openness and transparency; universal application of the international space regime.