• Journal of Arbitration Studies
• /
• v.26 no.4
• /
• pp.129-149
• /
• 2016

Medical dispute means the dispute between the hospital and the patient due to a medical accident. In general, medical accidents must be in accordance with the terms that are used in the medical dispute adjustment method stated in Article 2 (definition). In relation to this, there is a need to discuss an efficient operation scheme for Alternative Dispute Resolution (ADR) in medical disputes. In addition, it is necessary to look at issues of civil liability and criminal liability. In particular, in the consumer dispute arbitration committee, there is a case to make a "decision not to adjust" in aggressive intervention in the process of conflict resolution. The medical staff, on the basis of its "decision," can use this as a proven material for civil and criminal cases. This is rather upon the determination of the consumer council as a typical side effect to defend the user's perspective. This is the "decision" as was expressed from an order, "not adjusted." It is also determined to be easy and clearly timely. In the medical litigation, it is requesting the burden of proof of a patient's cause-and-effect relationship with the doctors committing negligence and medical malpractice. This seems to require the promotion of legislation in the direction to reduce future cases. It is determined that the burden of proof of medical accidents must be improved. The institution receiving the medical accident should prevent a closure report. Further, it is necessary to limit the transition to a franchise point. In this paper, we understand the problems of the current medical dispute resolution system, trying to establish a medical dispute resolution system desirable through an efficient alternative. In addition, it wants help in the protection and realization in medical consumers' and patients' rights. The relevant authorities will take advantage of these measures. After all, this could contribute to the system for a smooth resolution of a medical dispute.

• Strategy21
• /
• s.33
• /
• pp.113-147
• /
• 2014

While China's military rise is an issue of growing importance to regional security, it is worthwhile to note that it is not China's military modernization per se, but its capacity to project and sustain power along and beyond its borders--in particular, the possibility to resolve forcefully its outstanding maritime disputes and various contingencies. This essay argues that China's "anti-access capability"--a U.S.-coined term originally developed for a Taiwan contingency--is equally applicable to other major regional cases such as the Spratly disputes and a North Korean contingency. Furthermore, notwithstanding China's continuos efforts to develop and deploy various types and classes of weapons/platforms, it is the Russian systems and technologies that are most capable and thus likely assigned to the highest mission-critical areas. In assessing China's current and likely future military capability as well as their implications for the region, it is necessary to take note of the following: • There exists asymmetry of military capability between China and its weaker neighbors. While the PLAN is weak in several important aspects, for instance, many of its neighbors' navies are weaker still. • Some have argued that China's foreign policy behavior apparently became more "assertive" in 2009-2013, but it is wiser to keep in mind that China has almost always been assertive and aggressive when it comes to what China defines as "sovereignty and territorial issues" as well as its newest "core interests." • On the South China Sea disputes it is the function of U.S. presence in the theater--in the form of overseas bases and the freedom of navigation--and the PLA's own limitations to project and sustain power for an extended period of time that have largely prevented armed. • While Taiwan remains the idee fixe of China's diplomacy and military, it is and will be a tough nut to crack. China's recent creeping attempts for economic integration with Taiwan should be seen in this context. • China and Japan, the two regional heavyweights and traditional rivals, will likely have a bilateral relationship that is replete with difficulties and tension. China's unilateral announcement of its ADIZ in November 2013 as well as the occasional yet persistent disputes with Japan over the Senkaku/Diaoyudao/Diaoyutai islands are only the latest manifestation of this deeper and difficult relationship. • For Korean security it is imperative to take into account the geostrategic and historical factors. On top of the existing military threats from North Korea, the ROK should be able to employ a) hedging strategy, b) "limited defense sufficiency" strategy, and c) rock-solid relations with the United States.

• Journal of Arbitration Studies
• /
• v.17 no.1
• /
• pp.57-75
• /
• 2007

Ever since franchising emerged in the industry of distribution, it has been growing explosively in the U.S.A. and all other countries as well. It is a method of expanding a business by licensing independent businessman to sell the franchiser's products and/or services or to follow a format and trade style created by the franchiser using the franchiser's trade marks and trade names. Franchising is a form of business that touches upon many different areas of law including, but not limited to, general contract law, general principles of commercial law, law of intellectual property, competition law, fair trade practices law and other industry specific laws e.g., the Fair Practices in Franchising Act in Korea. Arbitration is a long established, legally recognized procedure for submitting disputes to an outside person(s), mutually selected by the parties, for a final and binding decision. Despite its merits as an alternative dispute resolution, it has been criticized, on the other hand, particularly by franchisees' attorneys on the ground that even though it is required to protect the franchisees against the enforcement of pre-dispute arbitration agreements because of the franchisees' paucity of bargaining power vis-a-vis the franchiser, arbitration cannot afford it. Until recently, however, little has been written about the legal issues pertaining to franchise agreement and arbitration clause contained therein in Korea. This treatise reviews the cases and arguments in relation to the subject especially of the U.S.A., which have been accumulated for decades. The issues addressed herein are the pre-emption by the FAA, the disputes to be arbitrated, the selection and qualification of arbitrators, the place of arbitration hearings and the evidentiary rules applicable, the expenses of arbitration, theory of fiduciary duty and the like, all of which are relevant to franchise agreement.

• Journal of Arbitration Studies
• /
• v.26 no.2
• /
• pp.67-89
• /
• 2016

An ADR arbitration system has a necessary value in the sports industry for settlement of disputes. Sports disputes should be resolved independently by enacting internal regulations within the basic principles of national law rather than treated as a civil action. If the dispute is not fair and transparent, it may cause distrust. Because an arbitration system has values such as speed, flexibility of economic decisions, professionalism of arbitrator and confidentiality of arbitration-related information, the efficiency of the arbitration system for conflict resolution has emerged recently. We have to assign sports experts to reactivate sports arbitration commission committees which existed from 2006 to 2009 in Korea. Many countries, such as the UK, USA, Canada, New Zealand, Hungary, the Netherlands, Poland, Germany, and Japan, which attain advancement of sports and the International Court of Arbitration establish and run their own sports arbitration agencies. However, Korea disbanded its sports arbitration commission committee for political and economic reasons. In 2012, after their disbanding, athlete Kim Yeon-kyoung came into conflict with Heungkuk Life over terms of free agent acquisition and international transfer certification. Finally they were able to settle those political conflicts. However if there had been related laws in Korea, they could have resolved those problems easily without international disputes. Practically, it would have been almost impossible for Kim Yeon-kyoung to win the dispute. But her problem became an issue after the London Olympics, so she could win. Although it is well for her to take an active role on the international stage, it left much to be desired on account of the intervention of political circles in order to resolve the conflict. If the sports arbitration commission committee in Korea had still been active, it could have come to a peaceful settlement domestically. Therefore we have to reestablish a Korean sports arbitration committee centered around experts of sports law.

• Journal of Digital Convergence
• /
• v.13 no.3
• /
• pp.117-125
• /
• 2015

In case that they do not have counterstrategies ready for patent disputes in advance, they would not be able to survive competitions or would fall behind in the market. Most of domestic companies are not equipped with appropriate counterstrategies, and there are only few studies on the countermeasures for patent disputes. Thus, this study examined counterstrategies for patent disputes drawn from cases of smartphone patent disputes and preceding researches, and conducted interviews and surveys with patent experts and company executives to grasp their opinions about the effectiveness of countermeasures for patent disputes related to the smartphone field. As for analysis tool, the Delphi method is selected that is usually used for analyzing relatively a small number of expert opinions. As a result of interviewing patent experts, effective countermeasures turned out to be cross licensing, counter-suit, and patent invalidation suit, in order, and as a result of surveys with company executives, they turned out to be patent invalidation suit, counter-suit, cross licensing, suit through solidarity, and loyalty agreement, in order. It is anticipated that the study results could be used for smartphone manufacturing companies and ICT companies to establish counterstrategies for patent disputes.

• Korean Journal of Construction Engineering and Management
• /
• v.21 no.4
• /
• pp.3-11
• /
• 2020

Problems related to construction contracts arise if they are not reflected in the design phase from the planning phase of the construction project, or if they are not properly dealt with despite various changes in the construction phase. So far, there have been a number of discussions in Korea regarding the improvement of the procedures for resolving construction disputes, and the problems related to the procedures for solving construction disputes have been raised steadily, but the problems related to the procedures for solving construction disputes are still unresolved. Therefore, in this study, the followings were proposed to strengthen the international competitiveness of the construction industry. First, the so-called Construction Dispute Mediation Act should be enacted to prepare the basis for the establishment of a tentatively named Construction Dispute Mediation and Arbitration Agency(CDMA). Second, the work of the CDMA should be limited to the work of supporting the DRB, mediation and Arbitration the private and public sectors. Third, it is required to choose between adjustment and arbitration when obtaining a contract and to operate the DRB during construction phase. Fourth, CDMA should be established as standing bodies, and branches should be operated in various parts of the country. Fifth, construction experts from various areas should be included as members so that disputes over construction contracts can be dealt with quickly. And finally, relevant laws that specify the procedures for dealing with construction disputes should be amended together.

• Korean Institute of Interior Design Journal
• /
• v.27 no.3
• /
• pp.116-125
• /
• 2018

With rapid economic development in Korea, interests in interior design have increased gradually. However, interior design markets were poorly evaluated from 2015 Korean Consumer Evaluation. It is necessary to identify what kinds of problems, defects, and consumer claims have arisen during interior design planning and construction procedures. Therefore the purpose of this study is to investigate claims and disputes in interior design project procedures and to find out when defects or claims take place in those procedures in order to reduce claims or defects. Email questionnaires were distributed to KOSID members (professional interior designers) using Google Survey. In addition, a focus group interview was conducted. A total of 54 responses were collected and analyzed using SPSS 19. As a result, in an agreement stage, alteration in materials is the major source of claim. More than a half of respondents addressed time shortage for programming and planning. During the construction stage, approximately 31% respondents experienced client dissatisfaction with materials and finishes. The reason for project completion delay was due to claims during construction. The claims most frequently appealed by clients were related to painting. The satisfaction with project quality is positively related to the quality and contents of design documents including design drawings and specifications. Regulations and communication with clients are important issues to reduce the gaps between interior designers and clients/ consumers.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.54
• /
• pp.3-44
• /
• 2012

Shipbuilding industry is one of the most influential ones in Korea. As shipbuilding industry is labor-intensive, it contributes to enhancing both local economy and national economy. Shipbuilding industry has been downsizing since the end of 2008 due to global financial crisis caused by America's sub-prime mortgage and aggravated by European countries' fiscal deficit. As a large fund is required for a single normal shipbuilding contract, fund raising is one of the most important elements in shipbuilding contract. Shipbuilding contract, requires refund guarantee in order for a buyer to reimburse the progressive payment paid to a builder. The disputes under shipbuilding contracts are mostly settled by arbitration rather than by law suit. English laws and English courts have been preferred for the choice of law as well as for the choice of forum. Due to depreciation of the ship value since the end of 2008, a number of buyers are trying to cancel the contract by raising unjust claim under the contract. Once disputes occurs regarding shipbuilding contract, a large amount of loss is inevitable. In order to mitigate the disputes arising from the shipbuilding contract, careful caution is required in drafting a shipbuilding contract.

• Journal of Arbitration Studies
• /
• v.11 no.1
• /
• pp.121-143
• /
• 2001

Arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of defined legal relationship, whether contractual or not. Arbitration has become increasingly popular in settling international and domestic commercial disputes nowadays. The importance of arbitration agreement cannot be overemphasized. It is the most reasonable way to settle commercial disputes. There are two types in arbitration agreement. one is arbitration clause, the other is submission agreement. The arbitration agreement must be made in writing, in addition, other communication instruments shall be considered as effective arbitration agreement if they are properly documented. Over the past few decades, a considerable number of studies have been conducted on the legal property of arbitration agreement in Germany and Japan. Its legal property is aspect of substantial law contract. The basis of arbitration agreement is the principle of party autonomy. The important effect of arbitration agreement is to preclude jurisdiction from national court. The respondent shall raise a plea not later than when submitting his first defense on the merits of the action. As positive effect of arbitration agreement, the court must support the conduct of arbitral proceedings and arbitrator can be appointed upon request of a party.

• Journal of Arbitration Studies
• /
• v.29 no.4
• /
• pp.3-31
• /
• 2019

In order to achieve full-scale economic cooperation between North Korea and South Korea, the Gaesong Industrial Complex should reopen first. In this case, the Inter-Korean commercial arbitration system should be clearly established to effectively resolve the disputes arising in the special economic zones of the Gaesong Industrial Complex. Even though the Inter-Korean Investment Security Agreement, the Agreement on the Resolution of Commercial Disputes between North Korea and South Korea, the Agreement on the Formation and Operation of the Inter-Korean Commercial Arbitration Committee, and the Agreement on the Formation and Operation of the Inter-Korean Commercial Arbitration Committee in the Gaesong Industrial District are in place, specific arbitration procedure is not concretely agreed upon and realized between the two Koreas. Therefore, the realization of commercial arbitration between them led by the Ministry of Unification or the government should be accomplished. In addition, it is necessary to consider the administrative trial or administrative litigation system in order to deal with administrative disputes that are not subject to commercial arbitration. Lastly, discussions on legal integration between the two Koreas should continue, focusing on the special economic zone of the Gaesong Industrial Complex, in order to prevent integration from being hindered by a different culture for a long time.