• 한국중재학회지:중재연구
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• 제29권3호
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• pp.121-140
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• 2019

First, the purpose of this research is to review the Online Dispute Resolution (ODR) regulations in Korea to resolve disputes which can arise in international e-commerce in the near future. Second, this research tries to look for alternative solutions to dispute resolutions according to these regulations. Third, this research pursues to enhance the effectiveness of business deals by providing efficient and satisfactory dispute resolution methods for e-commerce business. Furthermore, this study evaluates the definition of global e-commerce by comparing Online Dispute Resolution (ODR) with Alternative Dispute Resolution (ADR). Through analyzing the domestic ODR system and ADR system, this research could boost the employment of settlements in small-sized disputes through easy and convenient consumer access to both ODR and ADR procedures. The enhancement of the competitiveness of Korean companies in the global market is estimated to take place as a result. This research is estimated to provide benefits to our businesses both domestically and internationally by using ODR regulations and ADR methods. Moreover, this research is anticipated to verify usefulness in terms of consumer protection by advancing consumers' access to dispute solution authorities locally and abroad.

• 무역상무연구
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• 제68권
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• pp.89-121
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• 2015

Investor-State Dispute Settlement(ISDS) grants a foreign investor the right to access an international arbitrator, if he believes actions taken by a host government are in breach of commitments made in an investment agreement or an investment treaty. The arbitration procedure of ICSID is made specifically to resolve investment disputes, so most of investment disputes have been settled in accordance with the procedure. Owing to limitation of dispute settlements through the ICSID arbitration procedure, several investment dispute conciliation schemes have been emerged as alternatives. In the case of a conciliation, the conciliation procedure will be in progress based on arbitrary agreement between parties, and if both parties agree on a conciliation program, then the arbitrary execution rate is relatively higher than that of arbitration procedures. In addition, it is evaluated that the time duration of conducting a conciliation procedure is in general rather short in 8 to 24months, and its incumbent cost is also rather inexpensive. Most of all, through amicable settlement of a dispute between a foreign investor and a host state, the foreign investor may continue his investment activities without a hitch, while the host state may invite more investment without any risk of losing its external credibility. In conclusion, it is desirable to lead any investment dispute between a foreign investor and a host state settle in accordance with the dispute settlement procedure as specified in the relevant investment agreement. In addition, to make the foreign investor continue his investment activities, it will be necessary to provide a separate investment dispute conciliation system aside from such arbitration procedures to cope any unexpected incident flexibly.

• 무역학회지
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• 제45권1호
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• pp.31-45
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• 2020

As FTAs are introduced, greater trade between the countries results in more disputes between parties to the agreement. Disputes in international trade have previously been settled mainly through international arbitration. However, with the recent rise in negative aspects of the arbitration system, the international community has begun to seek ways to utilize mediation for replacing the arbitration system. Mediation is a dispute settlement system that helps the parties settle their disputes on their own through negotiations. The UNCITRAL, which seeks to unify and develop international trade law, amended the Model Mediation Law in 2018 and adopted the 'United Nations Convention on International Settlement Agreements Resulting from Mediation' in August 2019 to enable the adoption of the international settlement agreement. This study analyzes the main contents of the 2018 Model Mediation Law and predicts the potential for the development of international commercial mediation as a dispute settlement procedure for future international trade.

• 한국중재학회지:중재연구
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• 제13권2호
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• pp.547-584
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• 2004

Information technology(IT) is changing rapidly based on growth of internet and computer businesses. Therefore, computer programs and softwares are distributed to computer users promptly for their productivity increase and efficient work. So, in the distribution, the softwares will be copied or released through network or other methods which are not authorized by the program owners. In that case, copyright dispute is incurred and various issues are come out due to infringement of the software copyright. Thus, the purpose of this study is to research infringement cases of the software copyright and how to settle the dispute which is related with software programs. To achieve the purpose of this study, this research consisted of 5 chapters. At chapter 1 introduction, it mentioned necessity of this study, purpose and how to research this study, and at chapter 2 dispute factors indicated and summarized for technical resolution. At chapter 3, infringement cases of software copyright analyzed and studied upon intellectual property(IP) related laws. And methods of dispute settlement discussed and suggested to chapter 4 for copyright and intellectual property protection. Also, it emphasized importance of arbitration to resolve the issues timely and avoid time and economical consumption. Of course, arbitration law has to be matched with the trend of technology development for effective settlement. At chapter 5 conclusion, it summarized this research and suggested further research for empirical test of economic value of the software copyright upon the aspect of business, law, and engineering. In this study, the results are 1) IP related laws have to be enacted or revised to meet technical changes for the protection of software copyright on time. The enactment or the revision of law takes a long time, therefore, to deal the dispute effectively, 2) arbitration law has to be utilized efficiently in order to resolve issues and settle the dispute promptly. It is suggested the dispute settlement through arbitration to save time and economic matters for legislation, and to harmony with the technology trends. 3) Recognition of software copyright is to be improved by users and enterprises for development of software related industries and intellectual property protection. In conclusion, the protection of software copyright is important than any other things in the field of IT because of the development of industry and intellectual property related laws. The development is for areas of business, law and engineering, so research and practices are to be combined with the areas so that it could resolve the dispute settlement and IP protection effectively.

• 한국중재학회지:중재연구
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• 제24권2호
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• pp.53-80
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• 2014

This article focuses on the Active Plan for Alternative Dispute Resolution(ADR) in financial Dispute. The financial consumers of Korea had suffered greatly from the IMF in 1997 and the global financial crisis in 2008, which also increased financial conflicts significantly. In particular, active financial transaction, due to the development of computer and financial techniques causes frequent consumer financial conflicts. It is beneficial to settle them for judicial economy through an alternative conflict arbitration system instead of lawsuit at the court. Many advanced countries settle financial conflicts through various ADR in their numerous financial conflicts. In the settlement of financial conflict, the ADR system, covering mediation and arbitration, is useful and appropriate. Each governmental institution has various conflict settlement organizations, and it is necessary to operate them effectively. In order to settle financial conflicts properly, it is necessary to study law on financial consumer protection, and it is also necessary to understand practical custom and practical knowledge and to systematize them. Further, it is important to manage financial conflict-related data, to accumulate professional experiences, and to prepare a financial conflict settlement system in order to introduce financial education earlier to the whole nation.

• 국제지역연구
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• 제13권2호
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• pp.618-642
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• 2009

현재 WTO에 가입한 국가는 국가 간 무역분쟁을 다룸에 있어서 WTO협정의 DSU 등에서 규정하고 있는 분쟁해결제도의 틀을 준수해야 한다. 더욱이 동 협정에서는 지역 자유무역협정을 체결하더라도 WTO의 분쟁해결제도를 원용할 수 있도록 규정하고 있다. 우리나라와 미국은 WTO의 핵심 회원국으로서 주요한 역할을 수행하고 있다. 그럼에도 불구하고 한미 자유무역협정에는 별도의 분쟁해결제도를 도입하고 있다. 물론 일부 WTO의 분쟁해결제도를 벤치마킹한 부분이 존재하기도 하지만 분쟁해결을 위한 공동위원회 설치, 분야별 분쟁해결제도 별도 도입 등 상당부분 WTO 분쟁해결제도와는 차별화된 시도를 하고 있다. 본 연구에서는 한미 FTA와 WTO 양자의 무역분쟁해결제도를 상호 비교 고찰함으로써 실효성 측면 등 제 관점에서의 문제점을 도출하고 이를 근거로 그 대안 및 정책적 함의를 제시하고자 하였다. 이는 현재 추진하고 있거나 향후 추진할 FTA 협상에의 반영 및 국가 통상정책수립, 운용의 관점에서도 시사하는 바가 클 것으로 판단되며 특히 우리나라 일각에서는 한미 FTA 분쟁해결규정에 일부 문제가 있다는 지적이 제기되고 있는 바 이러한 관점에서 더욱 논의 및 연구 검토의 필요성이 존재한다.

• 한국중재학회지:중재연구
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• 제19권1호
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• pp.99-119
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• 2009

In modern capitalistic society, the harmed consumers like consumer complaints etc. are increasing day by day being caused by mass production and mass consumption etc. These consumer damages can come out as many types, but can be the most typical form. If there is a majority of the small sum damage, being saved by legal procedures is a fact that many consumers renounce it for long time, lots of expense and the complexity of the process etc. So, the government enforces consumer groups suit and collective dispute mediation system revising Framework Act on consumer. Specially, collective dispute mediation system, one of the ADR, saves the harmed consumers and accomodates efficiency in management of consumer dispute settlement commission by dealing with it collectively if the same or similar damage without a legal procedure happens to a great number of consumers. However, collective consumer dispute mediation system also has a number of problems. Therefore, this thesis is looking into the function and procedure of the collective consumer dispute mediation system on Framework Act on consumer as well as its problems and ways of improving it.

• 한국중재학회지:중재연구
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• 제23권2호
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• pp.81-113
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• 2013

The World Trade Organization (WTO) offers remedies for non-compliance by the introduction of compensation or retaliation in the Dispute Settlement Understanding (DSU). There are no the provisions under the WTO DSU and it seems unclear what retaliation is attempting to achieve. Therefore, it is unclear whether the goal of WTO retaliation is to induce compliance or to restore the balance between the rights and the obligations of WTO members. It has been claimed the WTO has a strong dispute settlement system by providing retaliation when the recommendations and rulings of Dispute Settlement Body (DSB) are not complied with. But this seems to be inadequate to bring about effective and timely compliance. Especially there is a problem with free riding by a violating member because the level of retaliation is determined from the expiration of a reasonable period of time, providing an incentive to delay compliance. Also the level of the suspension of concessions or other obligations authorized by the DSB is equivalent to the level of nullification or impairment, according to DSU Article 22.4. However, if the member concerned objections to the level of the suspension proposed, the matter shall be referred to arbitration. The arbitrator shall not examine the nature of the suspension of concessions or other obligations to be suspended but shall determine whether the level of such suspension is equivalent to the nullification or impairment. The arbitrator makes an assessment standard of equivalence by comparing the suspension of concessions or other obligations and the nullification or impairment calculated in terms of the amount of trade. But it is necessary that other standards replace the quantitative standards when the level of the nullification or impairment cannot be quantified by concrete damages.

• 통상정보연구
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• 제10권2호
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• pp.45-62
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• 2008

As the Internet settles down as a general means, every year the domestic e-commerce transaction using the internet rapidly increases in its scale, and the conflicts occurred from the e-commerce largely grow as well. However, it is true that the clear settlement means to work out such conflicts is not established yet. Considering the feature of e-commerce, it would be better to resolve them by ADR rather than by lawsuits in the court, and in addition to it, the ODR system having sweetness as its advantage will be the optimized model. But to make the ODR settled down, there are many assignments to be improved in many aspects afterwards. In case of our country also, since the ODR system is still its early developing step, it is not activized yet due to its weak technical, lawful environments. Thus, currently, it is unavoidable to operate the dispute mediation system, carrying out a system by the existing Off-line together, and thereby, as we replace the parts worked out by the Off-line with by the On-line, we must try to develop it into a quick, cheap, and reliable dispute settlement system.

• 한국중재학회지:중재연구
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• 제13권2호
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• pp.69-102
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• 2004

This paper discusses about the e-commerce and the various types of e-commerce disputes. Through empirical examination on the dispute consideration system and by comparative analysis it is derived out of the weakness of current system and finally some suggestions for improvement. First, it is recommended that the more sophisticated knowledge concerning e-commerce should be proliferated through the existing institutions. For example, disputes for B2C could be managed by the consideration system of consumer dispute consideration in Consumer Protection Board of Korea, while B2B by the arbitration system of the Korean Commercial Arbitration Board. Second, the role of Korea Institute for Electronic Commerce established for the purpose of consideration of e-commerce disputes is much emphasized. For successful achievement, it is necessarily required to reinforce the related laws, systems, institutions and human resources. Finally, it is also suggested that the Korean Commercial Arbitration Board and Consumer Protection Board of Korea fully cover consideration and arbitration, while Korea Institute for Electronic Commerce activates its proper role of consulting and ad hoc arbitration by using electronic information. This study results are how to minimize the disputes and the method of dispute settlement. Therefore, a role of arbitration proposed and emphasized. To protect the dispute in advance, it's suggested to revise rules timely following on technical changes, and emphasized that the dispute has to lead to arbitration settlement not for consuming unnecessary time and finance for enterprises and consumers.