• 무역상무연구
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• 제15권
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• pp.7-31
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• 2001

All legal systems set out the principle of full compensation of damages, which aims to fulfil the plaintiff's expectations by putting him into as good a position as he would have been in if the contract had been performed. On the other hand, they place some limitations on the full recoverability of damages for breach of contract. In Civil Law systems, 'fault' is a necessary requirement for liability for damages, and the extent of recoverable damages is directly related to the degree of the dependent's fault. This principle, however, is not adopted by Common Law systems, in which the dependent would be liable in damages for breach of contract even though the breach was not due to his fault. The CISG is in a similar position to the latter systems. In Common Law systems as well as CISG, the extent of liability of the party in breach for damages depends on whether he foresaw or could have foreseen the damages at the time of contracting. Unlike the position in Civil Law systems, foreseeability seems to be the most effective principle to decide the extent. The tests for remoteness centre on reasonable foreseeability or contemplation of the loss. The party in breach is liable even for loss indirectly caused to the other party provided that this loss was foreseeable or contemplated by the party in breach. However, this manner to decide remoteness may lead to unreasonable results in some cases. If the party in breach were the inveterate pessimist who foresaw all sorts of possible damages, he could foresee damages too remote from the breach of duty. If this fact were revealed in the course of trial, he should be liable for such indirect damages. This is really undesirable result. Therefore, as to the remoteness test, the criterion of whether the loss is foreseen or contemplated must not be adopted. Foreseeability by reasonable person must be the only available criterion.

• 무역상무연구
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• 제77권
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• pp.23-42
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• 2018

This study compares the SGA and CISG to find out the difference of the criteria for calculating damages. and it intends to give some important points in trade practice. The damages is intended to compensate the victim for the breach of contract but there are differences between SGA and CISG as follow. First, the SGA and CISG have the same purpose of claiming damages. Both laws and regulations are subject to a full indemnification to compensate for the breach of the contract by the amount equivalent to the loss suffered by the victim. Second, in the general principle related to the calculation of damages, both law enforcement officials are required to be able to predict damages caused by breach of contract. In the case of SGA, however, a foreseeability test or remoteness of damages is required for the relationship between the contract violation and the loss. In other words, it can be said that the causal relation between the contract violation and the damage is strictly applied rather than the CISG. Finally, both laws and regulations of SGA and CISG have a big difference in criteria for calculating damages. In the CISG, after the contract is canceled, it is classified according to the existence of the alternative transaction and the damage amount is calculated based on the contract price. On the other hand, the SGA estimates the loss based on the market price at the delivery of the goods, reflecting the change in the market price instead of the contract price of the goods.

• 한국생산제조학회지
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• 제7권5호
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• pp.92-97
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• 1998

The morpholgies of the wear particles are directly indicative of wear processes occuring in machinery and their severity. The neural network was applied to identify wear debris generated from the machine driving system. The four parameters(50% volumetric diameter, aspect, roundness and reflectivity) of wear debris are used as inputs to the network and learned the friction condition of five values(material 3, applied load 1, sliding distance 1). It is shown that identification results depend on the ranges of these shape parameters learned. The three kinds of the wear debris had a different patter characteristic and recognized the friction condition and materials very well by artificial neural network. We discussed how the network determines differencee in wear debris feature, and this approach can be applied to foreseeability and decisio for moving condition of the Machine driving system.

• 무역상무연구
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• 제19권
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• pp.67-93
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• 2003

The CISG approach was intended to make the remedial system clear, but produced ambiguity, and complexity. The CISG does not differentiate between main, auxiliary and participatory obligations. There is no distinction between breaches of main or breaches of auxiliary obligations, rather, a distinction is made between fundamental and other breaches of contract. Articles 25 gives the definition of fundamental breach of contract. This concept is the essential of avoidance and remedial system in the CISG. This concept, however, is ambiguous. The fact that the fundamentality of a breach of contract in many cases is the condition for an avoidance of contract, is expression of the trend of the CISG to preserve contracts, which I consider as essential in international trade. The elements which define a substantial detriment are extremely complex. It will become obvious that the relevant detriment is not a static element, but in many instances occurs only when the breach of contract continues. It should be added that it is the circumstances of each individual case which are relevant. It is to be stressed that a fundamental breach of contract must constitute also a non-fulfillment of a contractual obligation.

• 무역상무연구
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• 제67권
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• pp.23-47
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• 2015

European Commission drafted and proposed the Common European Sales Law(CESL) to the European Parliament for the realization of a uniform set of international private law rules within the EU internal market. Since its purpose is for free international commercial activities for the sale of goods, for the supply of digital content and for related services, it was proposed to enable EU Member States to adopt or supplement as their substantive law according to their options. This study is relate to the legal bases on termination of a contract under CESL, they are composed of three parts: damages and interest, restitution and prescription. Damages and interest are divided into damages, general provisions on interest on late payments, and late payment by traders. Damages are explained by dividing into right to damages, general measure of damages, foreseeability of loss, loss attributable to creditor, reduction of loss, substitute transaction, and current price. Restitution is described by dividing into restitution on revocation, payment for monetary value, payment for use and interest on money received, compensation for expenditure and equitable modification. Prescription is explained by dividing into general provisions, periods of prescription and their commencement and extension of periods of prescription. General provisions explain right subject to prescription into a right to enforce performance of an obligation and any right ancillary to such a right. Regarding period of prescription, the short one is two years and the long one is ten years. However, in the case of a right to damages for personal injuries, period of prescription for such right is thirty years. Regarding commencement, the short one begins to run from the time when the creditor has become, or could be expected to have become, aware of the facts as a result of which the right can be exercised, while the long one begins to run from the time when the debtor has to perform. However, in the case of a right to damages, the CESL clarifies that it begins to run from the time of the act which gives rise the right.

• 무역상무연구
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• 제62권
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• pp.55-86
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• 2014

Korea has become a member of the United Nations Convention on Contract of the International Sales of Goods (the 'CISG') effective since March 1, 2005. As, therefore, the governing law of the general terms and conditions (the 'GTC') in the Government Foreign Procurement Contract (the 'Contract') is mandatorily fixed to the Korean Law, the CISG, as an International Convention, now having an equivalent or even higher status to the Korean Law, unless expressly excluded, will be priorly applied to the Contract where a transaction occurs between its members. In this regard, this study focuses on how to find the way for the CISG to be a governing law of the GTC in order to eliminate legal uncertainties and lacks of foreseeability prevailed in the international trade. For that purpose, the legal aspects of GTC, and the Buyer's remedy for the Seller's breach of the Contract are analyzed in accordance with the comparative study between the CISG and the GTC including the relevant case studies. As a result of this study, the application of the CISG into the GTC is highly recommended in order to reflect into the Contract such features as fairly harmonized for the interest of both parties. Taking this opportunity, a GTC, amended from the existing one, or newly formed, within the perimeter of not conflicting with the provisions of the CISG, including but not limited to the Civil Law and Commercial Law, is required in order to evenly share each party's responsibilities and obligations where the breach or remedy of the Contract is, and, thus, which will ultimately contribute to an efficient conduct of the Contract.

• 한국건설관리학회논문집
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• 제13권1호
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• pp.36-43
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• 2012

건설사업관리 방식을 도입하는 과정에서 건설사업관리자의 계약적 책임에 대하여 많은 논란이 있어 2002년 건설기술관리법에 손해배상 조항을 개정하였으며, 건설산업기본법에서도 건설사업관리자에게 선관의무를 부과하고 있다. 하지만 CM for Fee의 계약 방식의 경우 건설사업관리자는 컨설턴트 책임을 지니고 있지만, 국내 건설환경으로는 컨설턴트 책임범위에 대해서 명확하게 규정하지 못하고 있다. 이에 본 연구에서는 건설사업관리자의 컨설턴트 책임의 성격인 전문가적 책임 중 선량한 관리자의 주의의무에 대한 이론을 정리하고자 하였으며, 변호사 등 전문가 의무 등을 토대로 건설사업관리자의 선관주의 의무 항목을 제시하여 건설사업관리자에 대한 책임문제를 진단할 수 있는 기초를 제공하고자 하였다. 도출된 항목에 대한 검증을 위해 전문가를 대상으로 인터뷰조사를 실시하여 중요도를 산정하였다.

• 무역학회지
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• 제43권4호
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• pp.51-68
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• 2018

본 연구는 CISG와 PICC에서 손해배상 범위에 대해 손해의 유형을 중심으로 살펴보았다. 두 규정 모두 완전배상의 원칙에 따라 계약 불이행으로 인해 피해를 입은 당사자는 손해를 배상청구할 권리를 규정하고 있지만, PICC가 CISG보다 손해배상 범위에 대해 좀 더 상세한 규정을 두고 있다. 따라서 CISG에서 손해배상청구에 대해 명확하지 않은 부분에 대한 해결책으로 PICC는 실질적인 도움을 줄 수 있을 것이다. CISG와 PICC에서 손해배상청구 대상이 될 수 있는 손해는, 직접손실과 부수손실, 결과손실, 일실이익, 기회상실 등이 될 것이나, 그 구체적인 손해범위는 손해마다 다르게 결정된다. 따라서, 실무상 손해배상 청구권의 행사 및 제한 요건을 잘 숙지하고 CISG 또는 PICC의 인정범위가 명확하지 않은 손해에 대해 계약 체결 시 명확히 합의할 수 있도록 해야 할 것이다.

• 의료법학
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• 제11권1호
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• pp.331-393
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• 2010

Psychiatrists who treat violent or potentially violent patients may be sue for failure to control aggressive outpatients and for the discharge of violent inpatients. Psychiatrists may be sued for failing to protect society from the violent acts of their patients if it was reasonable for the psychiatrists to have known or should have known about the patient's violent tendencies and if the psychiatrists could have done something that could have safeguarded in public. The courts of a number of jurisdictions have imposed a duty to protect the potential victims of a third party on persons or institutions with a special relationship to that party. In the landmark case of Tarasoff v Regents of University of California, the California Supreme Court held that the special relationship between a psychotherapist and a patient imposes on the therapist a duty to act reasonably to protect the foreseeable victims of the patient. Under Tarasoff, when a therapist has determined, or under applicable professional standards should determine, that a patient poses a serious threat of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. In addition to a Tarasoff type of action based on a duty to warn or protect foreseeable victims of psychiatric outpatients, courts have also imposed liability on mental health care providers based on their custody of patients known to have violent propensities. The legal duty in such a case has been stated to be that where the course of treatment of a mental patient involves an exercise of "control" over him by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls on the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient. After going through a period of transition, from McIntosh, Thompson and Brady case, finally, the narrow rule of requiring a specific or foreseeable threat of violence against a specific or identifiable victim is the standard threshold or trigger element in the majority of states. Judgements on these kinds of cases are not enough yet in Korea, so that it may be too early to try find principles in these cases, however it is hardly wrong to read the same reasons of Tarasoff in the judgements of Korea district courts. To specific, whether a psychiatric institute was liable for violent behavior toward others depends upon the patients conditions, circumstances and the extent of the danger the patients poses to others; in short, the foreseeability of a specific or identifiable victim. In this context if a patient exhibit strong violent behavior toward others, constant observation should be required. Negligence has been found not exist, however, when a patient abruptly and unexpectedly attack others or unidentifiable victim. And the standard of conduct that is required to meet the obligation of "due care" is based on what the "reasonable practitioner" would do in like circumstances. The standard is not one of excellence or superior practice; it only requires that the physician exercise that degree of skill and care that would be expected of the average qualified practitioner practicing under like circumstances. All these principles have been established in cases of the U.S.A and Japan. In this article you can find the reasons which you can use for psychotherapist's liability for failure to protect third person in Korea as practitioner.

• 의료법학
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• 제7권2호
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• pp.9-74
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• 2006

Due to the awareness of their rights for medical liability and the advancement of legal principles, it becomes also not hard to find those who seek damages against hospitals, doctors and nurses for the suicide committed under the protection of psychiatric institute in Korea these days. Judgements on these kinds of cases are not enough yet, so that it may be too early to try to find principles used in these cases, however it is hardly wrong to read following things from above cases. That is, to gain the case, plaintiffs should show (1) there exists an obligation of "due care"(there is a special relation between patients and hospitals), (2) the duty is violated on the basis of the applicable standard of care, (3) whatever injures or damages are sustained are proximately caused by the breach of duty and (4) the plaintiff suffers compensable damages. To specific, whether a psychiatric institute was liable for wrong death or not depends upon the patients conditions, circumstances and the extent of the danger the patients poses to himself or herself; in short, the foreseeability of self-inflicted harm(the doctor should have or could reasonably have foreseen the patient's suicide and the doctor's negligence actually caused the suicide). In this context if a patient exhibit strong suicidal tendencies, constant observation should be required. Negligence has been found not exist, however, when a patient abruptly and unexpectedly dashes from an attendant and jumps out a window or otherwise attempts to injure himself or herself. And the standard of conduct that is required to meet the obligation of "due care" is based on what the "reasonable practitioner" would do in like circumstances. The standard is not one of excellence or superior practice; it only re quires that the physician exercise that degree of skill and care that would be expected of the average qualified practitioner practicing under like circumstances. Most of these principles have been established at cases of the U.S.A and Japan. In this article you can also find the legal organizations of medical liability and medical contacts on the suicide of patients who have psychiatric diseases under Korean negligence law.