• 한국중재학회지:중재연구
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• 제20권3호
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• pp.71-91
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• 2010

ADR is alternative dispute resolution that includes mediation, adjudication, arbitration, conciliation and ombudsman schemes. ADR may be an alternative to going to court or to a tribunal. The main types of ADR are conciliation, arbitration or mediation and ADR is divided into national leading ADR and private lading ADR and national leading ADR includes court-annexed ADR and administrative ADR. Court-annexed ADR has become a well established feature of the judicial systems on a global basis. The bulk of court-annexed ADR in Glove is by way of mediation. Thus each nation takes part in ADR by court involvement and Enactment of ADR-related Laws. And the involvement of nations have both the regulative character and promotive character in ADR. In addition to the national leading ADR, the private leading ADR also must be activated as United Kingdom. Thus this paper deals with national leading ADR and private leading ADR and the purpose of this paper is to contribute to the activation of ADR by studying the promotion and limited the involvement of nation in ADR and private leading ADR in United Kingdom.

• 한국항해항만학회:학술대회논문집
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• 한국항해항만학회 2010년도 춘계학술대회
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• pp.422-427
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• 2010

해양안전 심판은 원인규명에서 나타난 교훈을 통하여 유사사고의 재발을 방지하는 목적을 달성하고자 하며 또한 해양사고 관련자의 과실에 대하여 정계재결 혹은 시정권고 재결 등을 하게 된다. 그러나 해양안전심판원의 재결은 이른바 전문가집단의 견해로서 연정을 받으며 형사소송이나 민사소송에도 그 영향을 끼치는 것은 물론이거니와 또한 보험사 혹은 선박소유자간의 손해배상관계에 있어 합의, 협상의 근거로 사용되고 있다. 그러나 이 같은 영향력 때문에 한편으로는 재결 취소소송이 이어지고 있다. 그러므로 해양안전심판원의 재결은 이러한 사정을 감안하여 심판원이 지닌 권위의 유지를 위하여 신중하게 이루어져야 할 것이다. 자유심증주의는 법정증거주의에 대하여 인간의 이성에 대한 신뢰를 기초로 하여 천차만별인 증거의 증명력을 합리적으로 자유판단하여 실체적 진실을 발견하려는 것이다. 이는 증거의 신빙성과 협의의 증명력을 법률에 의한 규제보다 법관의 합리적 과학적 심증에 맡기는 것이므로 법관의 자의를 허용하거나 순수한 재량에 맡기는 것은 아니고 증거의 평가는 어디까지나 경험상의 법칙과 논리법칙에 따라야 한다.

• 한국중재학회지:중재연구
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• 제19권1호
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• pp.3-24
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• 2009

Arbitration is the system of resolving disputes not by the adjudication of a national court but by the award of an arbitrator or arbitrators. To settle disputes by arbitration, it should be concluded that the arbitration agreement which is implied that the parties agree to submit to the arbitral award about all or certain disputes which have arisen or which may arise between them in respect of defined legal relationships. It is a matter for debate that which types of dispute may be resolved by arbitration. This problem is concerning the arbitrability of the subject-matter of a dispute. National laws establish the domain of arbitration. Each state decides which matters may or may not be resolved by arbitration in accordance with its own political, social and economic policy. According to Korean Arbitration Act Art. 3 (1), any dispute in private laws would be the object of arbitral proceedings. Therefore, the parties may agree to arbitrate disputes relating to the rights that they freely dispose of. Besides, they may have the freedom to choose arbitration as the form of a dispute resolution. Because arbitration is a private proceeding with public consequences that some types of dispute are reserved for national courts, whose proceedings are generally in the public domain. It is this sense that they may not be the object of arbitration. After all, it could be the object of arbitral proceedings that disputes which are capable of a settlement by arbitration.

• 한국건축시공학회지
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• 제2권1호
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• pp.147-154
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• 2002

In the Past, The selection of individual method of construction was done by head of construction site or an experienced person very frequently. By doing this, The wrong selection of construction method without exact adjudication of construction site situation lead to increasing of cost and extension of construction term. Finally it will effect all over the construction process. Especially, In case of underground construction in the beginning, there are a lot of a variable factor and it also effect on the entire construction process and it need very careful process. The purpose of this study is to present the best suitable methodology for selection of construction method by considering potential risk of construction method and variables together with external condition for underground construction. The purpose of this study Is to select the most suitable construction method by analysing potential conditions(construction site situation and client request in designing ) To do this, We prepared arrangement rule to arrange the conditions for construction method. And thin make checklist of the analyzing construction method. Though above process, To expect the risk of individual construction method using above risk checklist and using Analytic Hierarchy process among Multiple-Criteria Decision making, the professional opinions is to be adapted. By doing this, it can lead and select the most suitable construction method considering the data which get from risk density test.

• 한국중재학회지:중재연구
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• 제23권1호
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• pp.1-23
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• 2013

When a court recognizes an arbitral award, it acknowledges that the award is valid and binding, and thereby gives it a set of effects similar to those of a court's judgment, among which res judicata is the most important. The res judicata effect of an arbitral award generally forbids parties to an action from subsequently litigating claims that were raised in a prior arbitration. In common law countries, res judicata may also preclude re-adjudication of issues raised and decided in a prior arbitration. The Korean Arbitration Act acknowledges the rights of parties to an arbitral award to seek not only an enforcement judgment but also a recognition judgment on an arbitral award. Therefore, the question arises whether or not the winning party in an arbitration must acquire a recognition judgment on the arbitral award in order to enjoy the effects of a recognized award. However, according to the case law and generally accepted views, an arbitral award is automatically recognized without any additional procedure, as long as it satisfies the requirements for recognition. Therefore, in order to resolve this question, it is desirable to eliminate the statutory clause that stipulates the right to seek recognition judgment.

• 한국건축시공학회:학술대회논문집
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• 한국건축시공학회 2001년도 학술논문발표회
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• pp.99-117
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• 2001

In the past, The selection of individual method of construction was done by head of construction site or an experienced person very frequently. By doing this, The wrong selection of construction method without exact adjudication of construction site situation lead to increasing of cost and extension of construction term. Finally it will effect all over the construction process. Especially, In case of Underground construction in the beginning, there are a lot of a variable factor and it also effect on the entire construction process and it need rely careful process. The purpose of this study is to present the best suitable methodology fer selection of construction method by considering potential risk of construction method and variables together with external condition for Underground construction. The purpose of this study is to select the most suitable construction method by analysing potential conditions(Construction site situation and Client. Request in designing) To do this, We prepared arrangement rule to arrangement conditions for construction method. And then make Checklist the analyzing construction method. Though above process, To expect the risk of individual construction method using above risk checklist and using Analytic Hierarchy Process among Multiple-Criteria Decision Making, the professional opinions is to be adapted. By doing this, It can lead and select the most suitable considering method considering the data which get from risk density test.

• 한국중재학회지:중재연구
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• 제20권1호
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• pp.41-65
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• 2010

It is a matter for debate that which types of dispute may be resolved by arbitration. This problem is concerning the arbitrability of the subject-matter of a dispute. National laws establish the domain of arbitration. Each state decides which matters may or may not be resolved by arbitration in accordance with its own political, social and economic policy. In response to complexity and diversity of a social phenomenon, the dispute also is various, therefore can not be settled efficiently by means of court adjudication to which applies a law strictly. To overcome such problems we are going to seek to make use of arbitration. According to Korean Arbitration Act Art. 3 (1), any dispute in private laws would be the object of arbitral proceedings. For the promotion of fair and free competition, it is increasingly wide-ranging antitrust legislation across the world. It is matter for debate what can an arbitral tribunal do when confronted with an allegation that the contract under which the arbitration is brought is itself an illegal restraint of trade or in some other way a breach of antitrust law. The underlying question is how to accommodate the conflicting congressional policies favoring resolution of private controversies by arbitration and encouraging private suits to protect the public interests served by the antitrust laws. It is necessary to inquire into the arbitrability of antitrust issues on case-by-case basis, because the types of them are quite diverse. If antitrust issues are the dispute in private laws and the contracting parties agreed to submit to arbitration disputes which have arisen or which may arise between them in the antitrust issues, the antitrust disputes are arbitrable. Not only international antitrust disputes but also domestic antitrust disputes are capable of being resolved by arbitration. When the public interests in the enforcement of antitrust legislation are asserted, it is possible to justify the annulment or the refusal of the recognition or the enforcement of an arbitral award that ignores public policy as a matter of it.

• 한국중재학회지:중재연구
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• 제17권1호
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• pp.33-55
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• 2007

Parties to national or international disputes use arbitration because they think it is faster than litigation or affords privacy. But it is very important for the parties that the decision of arbitrators is made impartially and independently. For the parties to accept the outcome of an arbitration, it is essential that the final outcome be the result of an impartial process, especially because arbitration is a form of adjudication, albeit a private one. The success of arbitration resides in the conduct of arbitrators. The more independent and impartial arbitrators are, the more trustworthy arbitration will be. Just as court procedures allow for the recusal of judges under certain circumstances, the arbitral process provides means to remove arbitrators from a tribunal if arbitrator can no longer be considered impartial or independent. This is blown as the disqualification or challenge of arbitrators. An arbitrator can also be challenged when he or she does not fulfill the contactually agreed and stipulated qualifications required by the arbitral agreement. An arbitrator's inability to act impartially could give rise to a challenge to the arbitrator, and even to the award. However, deciding whether an interest or relationship could give rise to an apprehension of bias is a difficult issue for every arbitrator. The standard of arbitrator's impartiality and independence is not commensurable to that of judge, because the parties are permitted considerable autonomy in selecting arbitrators. Particularly it may be expected for the party-appointed arbitrator to act as the advocate of the party in the deliberations of the tribunal. Doubts that could give rise to a challenge to the arbitrator should be justifiable. That is the case if a reasonable, informed third party would conclude that the arbitrator's decision making might be influenced by factors other than evidence presented by the parties. Consequently, for example, the mere fact that an arbitrator was to work in the same firm as one of the parties' counsel, this could not automatically be considered as grounds for challenge for lack of impartiality.

• 한국중재학회지:중재연구
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• 제27권1호
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• pp.3-35
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• 2017

For recent years, several disputes between Korean consumers and multinational companies have arisen. Since the disputes were big and material that children's safety was at issue, a question started if Korean law properly has protected consumers' rights against multinational companies. While the Korean legal society tried to legislate punitive compensation with this concern, the U.S. Supreme Court reached an interesting case law regarding consumer contracts. A recent trend on consumer contracts in the United States shows that general terms have arbitration clause with class action waiver. As much as international arbitration has worked as the most effective resolution in international commercial disputes, the concept is still foreign and the experts are not approachable to lay individual consumers. However, class action in arbitration can hugely help for lay individual consumers to bring a case before arbitration tribunal. California courts consistently showed the analysis that the practical impact of prohibiting class action in arbitration clause is to ban lay individual consumers from fighting for their rights. However, the Supreme Court held that the arbitration clause shall be enforced as parties agree even if consumers practically cannot fight for their rights in the end. Even though consumer contracts are a typical example of lack of parity and of adhesive contract, the Supreme Court still applies liberalism that parties are equal in power and free to agree. This case law has a crucial implication since Korean consumers buy goods and services from the U.S. and other countries in everyday life. Accordingly, they are deemed to agree on the dispute resolution clauses, which might violate their constitutional right to bring their cases before the adjudication tribunal. This issue could be more important than adopting punitive compensation because consumers' rights are not necessarily governed by Korean law but by the governing law of the general terms and conditions chosen and written by the multinational companies. Thus this paper studies and analyzes the practical reality of international arbitration and influence of arbitration clause with class action waiver with the U.S. Supreme Court and California case laws.

• 한국건설관리학회논문집
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• 제13권3호
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• pp.131-142
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• 2012

용역형 CM방식은 1996년 "건설산업기본법"에 의해 국내에 처음 도입된 후 매우 익숙한 용역 발주 방식들 중 하나로서 제시되고 있으나 최근 건설경기 침체와 더불어 용역형 CM 시장은 지속적인 침체에서 벗어나지 못하고 있는 실정이다. 국내의 CM과 관련된 시장 환경 요소와 함께 제도기반이 아직까지 정착하지 못한 점이 이러한 관련시장 침제의 근본적인 원인 중 하나라고 볼 수 있다. 즉 발주자의 CM 서비스에 대한 부정적 인식과 함께 CM대가의 현실성 결여, CM서비스의 기술 발전 한계 등 CM과 관련된 제도 및 기반 환경에 대한 전반적인 문제점이 제기되고 있으며, 이에 대한 개선이 시급한 시점에 도달한 것으로 파악된다. 과거 10년간 공공건설 시장에 있어 CM이 태동되었다면 현재시점부터는 외형적 성장만을 위한 것이 아니라 CM과 관련된 주체들이 상호만족 할 수 있는 기반 환경이 조성되어야 한다. 이를 위해서는 건설 산업에 있어 CM의 역할이 구체적으로 정립되어야 한다. 이에 본 연구는 현재의 CM 제도 및 제반 환경 사항을 집중적으로 분석하여 현안의 문제점 및 개선안을 제시하고자 한다. 본 연구에서는 설문과 델파이기법을 연구방법론으로 이용하여 관련 전문가의 다양한 의견을 객관적인 방법으로 취합 제시하였으며, 이에 기반한 개선안을 도출함으로써, 연구의 목적을 성취하고자 한다.