• 무역학회지
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• 제44권2호
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• pp.83-94
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• 2019

Article 17 of the Marine Insurance Act (MIA) states that "A contract of marine insurance is a contract based upon the utmost good faith, and if the utmost good faith be not observed by either party, the contract may be avoided by the other party." In the Carter v. Boehm case, Lord Mansfield was the first to provide a comprehensive description of the duty of utmost good faith, which is analyzed here. This judgement not only laid the foundation for the Modern English Insurance Act, but it also influenced the draft of the English Insurance Act of 2015, which aimed at correcting distortions that occurred during the application of statue law and common law thereafter. The duty of utmost good faith, applied between Lord Mansfield's insured and insurer presents the context of information asymmetry of the insured and insurer entering contracts. In the absence of information asymmetry, in contrast to the effects of being in both sides of the duty of utmost good faith, alleviating the duty of disclosure of the insured, and it is also clear that the warning of the severity of the retrospective avoidance of the breach of duty of disclosure and the need for its limited application have already been pointed out. Furthermore, considering the principle of retrospective avoidance, the duty of utmost good faith should be understood as a concept limited to the duty of disclosure before a contract is concluded

• 한국건설관리학회:학술대회논문집
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• 한국건설관리학회 2002년도 학술대회지
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• pp.46-53
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• 2002

건설사업에서 공공건설사업은 국가계약법령에 의해 집행되고 있고, 계약유형으로 볼 때 도급, 위임, 고용 등 복합적인 계약성질을 띠고 있으므로, 수급인의 하자책임을 단일화하여 규정하는 것이 쉽지 않다. 이로 인해 계약이행중 발생하는 불완전이행과 목적물 인수 후 발생하는 하자에 대한 수급인의 책임에 대한 적용 및 해석은 어려운 작업이 되어 왔다. 그리고 불완전이행이나 하자에 대한 연구는 활성화되지 못하였고, 불완전이행이나 하자관련 분쟁이 발생하게 될 경우 당사자 일방이 포기하거나 일반론적으로 접근하여 본질적인 문제해결을 이루지 못하였다. 따라서 공공건설사업에 있어서 수급인의 하자책임에 대해 심층적으로 고찰할 필요성이 있다. 이러한 문제점을 인식하여 본 연구에서는 건설공사의 하자나 불완전이행은 제조물책임법에서 규정하는 결함과는 다르므로 국내외 수급인의 하자책임에 대해 고찰한 후, 우리나라 국가계약법령에 근거한 수급인의 불완전이행 및 하자책임을 분석하여 문제점을 도출한 후 개선방안을 항목별로 도출하였다.

• 무역상무연구
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• 제62권
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• pp.135-178
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• 2014

The Uniform Commercial Code (UCC) sets the standards of good faith in a commercial transaction for the sale of goods. With every sales contract, there is an implied obligation for both the seller and the buyer to negotiate the contract and perform under the terms of the contract in good faith. The agreement between both parties and the customs in the industry determine how the good faith standard should be applied to a particular transaction. Generally, the meaning of good faith, though always based on honesty, may vary depending on the specific context in which it is used. A person is said to buy in good faith when he or she holds an honest belief in his or her right or title to the property and has no knowledge or reason to know of any defect in the title. In section 1-201 of the UCC good faith is defined generally as "honesty in fact in the conduct or transaction concerned." Article 2 of the UCC says "good faith in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade." The sales contract will generally determine which party is required to perform first. This provision helps to determine if the buyer or the seller is in breach of the agreement due to failing to perform as stated by the contract. Either the seller must deliver the items before the buyer is required to accept and pay or the buyer must pay for the items before the seller has the duty to act in good faith and deliver the items in a reasonable manner. If the contract does not specifically define who is required to perform, industry customs and fair trade may determine what is acceptable for the transaction. Under the UCC, the buyer is required to pay for the goods when they are delivered, unless the contract states otherwise. Therefore, the UCC imposes an obligation of good faith on the performance of every contract or duty under its purview. The law also generally requires good faith of fiduciaries and agents acting on behalf of their principals. This article discusses problems of the principles of good faith under the UCC. Specifically, this paper focuses on the interpretation of UCC sections and analysis of various cases. By comparing, also, UCC and Korean law, the paper proposes some implications of good faith issues for Korean law.

• 의료법학
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• 제15권1호
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• pp.263-302
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• 2014

The court handed down meaningful rulings related to medical sectors in 2013. This paper presents the ruling that the care workers could be the performance assistants of the care-giving service although the duties of care worker are not included in the liability stipulated in the medical contract signed with the hospital for reason of clear distinction of duties between care workers and nurses within the hospital in connection with the contract which was entered into between the hospital and patients. In relation to negligence and causal relationship, the court recognized medical negligence associated with the failure to detect the brain tumor due to the negligent interpretation of MRI findings while rejecting the causal relationship with consequential cerebral hemorrhage. The court also recognized negligence based on the observation on the grounds of inadequate medical records in a case involving the hypoxic brain damage caused during the cosmetic surgery. In terms of the scope of compensation for damages, this paper presents the ruling that the compensation should be estimated based on causal relationship only in case the breach of the 'obligation of explanation' is recognized, however rejecting the reparation for de factor property damages in the form of compensation, and the ruling that the lawsuit could be instituted in case that the damages exceeded the agreed scope despite the agreement that the hospital would not be held responsible for any aftereffects of surgery from the standpoint of lawsuit, along with the ruling that recognized the daily net income by reflecting the unique circumstances faced by individual students of Korean National Police University and artists of Western painting. Many rulings were handed down with respect to medical certificate, prescription, etc., in 2013. This paper introduced the ruling which mentioned the scope of medical certificate, the ruling that related to whether the diagnosis over the phone at the issuance of prescription could constitute the direct diagnosis of patient, along with the ruling that required the medical certificate to be generated in the name of doctor who diagnosed the patients, and the ruling which proclaimed that it would constitute the breach of Medical Act if the prescription was issued to the patients who were not diagnosed. Moreover, this paper also introduced the ruling that related to whether the National Health Insurance Service could make claim to the hospitals for the reimbursement of the health insurance money paid to pharmacies based on the prescription in the event that the hospitals provided prescription of drugs to outpatients in violation of the laws and regulations.

• Journal of Korea Trade
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• 제26권1호
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• pp.81-98
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• 2022

Purpose - This study aims to compare the requirements under the United Nations Convention on Contract for the International Sales of Goods (CISG) and the Korean Civil Act (KCA) regarding the buyer's right to require the delivery of substitute goods. The buyer's right to demand substitute delivery not only protect them from the seller's breach of contract but also preserves the contractual bond between the parties by providing an opportunity for sellers to protect their goodwill and circumvent the extreme remedy of avoidance. However, as substitute delivery entails additional efforts and costs for return and re-shipment, this right should not be allowed in every case of defect. Additionally, unlike the CISG, the KCA contains no specific provision related to the requirements for claiming substitute delivery. Therefore, it would be meaningful to examine and compare what requirements should be fulfilled before the buyer exercises the right in relation to non-conforming goods under the CISG and the KCA. Design/methodology - We conducted a comparative study of the requirements under the CISG and the KCA regarding the buyer's right to require delivery of substitute goods given a seller's delivery of non-conforming goods. Additionally, we referred to the opinions from the CISG Advisory Council, the draft of the KCA amendment, and related precedents, mainly focusing on the existence and severity of defects, reasonableness, and timely notice and requests as the major requirements for substitute delivery. Findings - The results of this study can be summarized as follows: First, the CISG provides more detailed requirements about the right to require delivery of substitute goods; by contrast, the KCA does not stipulate any such requirement. Thus, specific requirements for substitute delivery should be included when amending the KCA. Second, the CISG attempts to minimize overlapping and conflict with other remedies by specifying detailed requirements for the delivery of substitutes. Third, both the CISG and KCA require reasonableness for substitute delivery. Originality/value - Although there are no explicit legal requirements for substitute delivery under the KCA, there has been relatively little discussion of this issue to date. Therefore, the findings of our study can guide future revisions of the KCA to fill this loophole. Moreover, the recently released CISG Advisory Council opinion that clarifies the continuing confusion and debate, can help distinguish which remedy is suitable for a particular case. It may provide practical advice for businesspeople in international trade as well as legal implications for the future development of the KCA.

• 무역상무연구
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• 제13권
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• pp.193-213
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• 2000

The CISG has been legislated for playing roles as uniform rules which govern international sale of goods. The job of getting unification of the diverse domestic legal systems required almost half century of work. In the process of making the Convention some rules resulted from compromises of nation's relevant interests. The Convention, however, promoted both the legal certainty and harmonization in international trade in that the uniform rules suggest the appropriate resolution to the legal problems in the course of concluding a contract as well as in remedies for breach of contract. This paper focuses systematically on the scope of applicability of the CISG. The Convention deals with contracts for the international sale of goods. However, it does not apply to all kinds of the international sale of goods. The CISG confines the sphere of applicability to a certain type of sales. First of all, the CISG is limited to those contracts having been concluded between a particular group of persons, which is called a personal aspect of applicability. Secondly, the CISG covers a specific category of sales, which is called a material aspect of applicability. Thirdly, the CISG are concluded within a particular period of time, which is called a temporal aspect of applicability. Lastly, the CISG is limited to contracts falling within a given territorial sphere, which is called a territorial aspect of applicability.

• 무역상무연구
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• 제62권
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• pp.33-53
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• 2014

This study examines the seller's liability for defects in title of goods under SGA. If the contracting parties choose SGA as a governing law, they should pay attention to whether a contractual stipulation for defects in title of goods is a condition or a warranty. It is because SGA divides contractual terms into a condition and a warranty. And its effects regarding a breach of a condition or a warranty are different. Under SGA s 12(1) as a condition, in a contract of sale, the seller has a right to sell the goods at the time of contract, and in the case of an agreement to sell, he will have such a right at the time when the property is to pass. Under SGA s 12(2) as a warranty, there is an implied warranty that (a) the goods are free, and will remain free until the time when the property is to pass, from any charge or encumbrance and (b) the buyer will enjoy quiet possession of the goods as long as the buyer retains an interest in the goods. But the seller will not be liable if the third party unlawfully interferes with the buyer's possession.

• 무역상무연구
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• 제17권
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• pp.37-69
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• 2002

This study sumed up general rules for measuring damages based on SGA, UCC, CISG, PICC legislated by on the base of English decision of Hadley v. Baxendale Concluding marks as follows : (1) General rule for measuring damages is a standard rule that is developed to place the aggrieved party in as good a position as if the party in breach performed the contract. (2) Damages may also be accompanied by other remedies (3) Damages has alternative character (4) Damages give the aggrieved party full compensation (5) It is enough for the aggrieved party simply to prove the non-performance for damages (6) Occurence of harm must be reasonably certain and a direct consequence of non-performance (7) while Rule for measuring damages an UCC is concrete CISG is comprehensive. (8) Although rule of UCC and CISG for damages measurement is a similar in many aspect but there are in expression and range of damage between them. (9) the result of this study will give researchers the opportunity to develope in depth and their report of research also contribute chance to perform business their effective oversea's trade

• 무역상무연구
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• 제60권
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• pp.79-106
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• 2013

The world is significant increasing investment volume into developing countries from foreign investors. Foreign financial capital is searching in interesting place among the emerging market. However foreign investors put still their experience in the economical and social crisis with political risks in the host countries. MIGA entered into the political risks insurance market which has one of the basic matter of sponsored the private investment guarantee programs. They put guarantee or covering risks of currency inconvertibility, expropriation, breach of contract and political violence. In the case contracts of guarantee concluded between investor and MIGA which are disputes in relation to such MIGA service contract, it should be settled by negotiation, conciliation and arbitration under the convention establishing the Multilateral Investment Guarantee Agency(MIGA). All disputes within the scope to states and investor of MIGA members shall be settled in accordance with the procedure set out in the convention. Recently, MIGA is opening the office in Seoul to strengthen joint efforts between MIGA and Korea. It will be a good chance to consider sustainable improvement and dispute solutions for emerging countries in foreign investment to the korean investors.

• 무역상무연구
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• 제61권
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• pp.3-28
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• 2014

This study describes the buyer's remedies regarding defects in title under CISG. Although CISG stipulates the seller's liability for the delivery of conforming goods physically at Art. 35 and legally at Art. 41 and Art. 42 respectively, the buyer's remedies are not distinguished between non-conformity governed by Art. 35 and defects in title governed by Art. 41 and Art. 42. If the seller does not fulfill his obligation under Art. 41 and Art. 42 to deliver goods which are free from third party claims, the buyer should pay attention to which remedies are available under CISG. Under CISG, for defects in title in the delivered goods, the buyer is entitled to require performance in Art. 46 (1) unless he has resorted to a remedy which is inconsistent with this requirement, to declare the contract avoided by strictly limiting the situation in which the failure by the seller to perform his obligation amounts to a fundamental breach of contract in Art. 49, to claim damages in Art. 74, and to suspend the performance of his obligation where it becomes apparent that the seller will not perform a substantial part of his obligation in Art. 71 (1). Unlike Art. 35 non-conformity, the buyer may not require delivery of substitute goods under Art. 46 (2), claim repair under Art. 46 (3), and declare price reduction for title defects under Art. 50.