• Journal of Arbitration Studies
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• v.27 no.1
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• pp.59-84
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• 2017

The effects of an arbitration agreement depend on the legislative policy of the nation where arbitral awards are made and where awards are worked out in the private procedures. According to the main body of Article 35 of the Korean Arbitration Act, arbitral awards have the same effects on the parties as the final and conclusive judgment of the court. This is only possible if the awards are formed by satisfying all the legal requirements, have gone into effect, and have become final and conclusive. It is for the legal stability and the effectiveness of the settlement of disputes that the Act grants arbitral awards. While investigating the effects of an arbitral award, the character of the arbitration in which the party's autonomy applies should be considered, along with the substance of the disputes which parties intend to resolve by an arbitration agreement. The proviso of Article 35, which was added in the 2016 Act, says that the main body of the Article shall not apply if recognition or enforcement of arbitral awards is refused under Article 38. Two stances have been proposed in interpreting the proviso. One of them is that there are grounds for refusing the recognition and enforcement of the awards. The other one is that the ruling of the dismissal of a request for enforcement has been final and conclusive. According to the former, it is really unexplained as to its relations with the action for setting aside arbitral awards to court and the distinction between nullity and revocation, and so on. Therefore, its meaning must be comprehended on the basis of the latter so that the current Act system with revocation litigation could be kept. The procedures of setting aside, recognizing, and enforcing arbitral awards are independent of one another under the Act. It is apprehended that the duplicate regulations may lead to the concurrence or contradiction of a court's judgment and ruling. Thus, we need to take proper measures against the negative sides by interfacing and conciliating these proceedings.

• Strategy21
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• s.33
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• pp.5-36
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• 2014

This article aims to analyze the diplomatic challenges currently facing China as well as the foreign policy the Xi Jinping administration is adopting to address them. With these purposes in mind, it will look into three areas: first, diplomatic tasks confronting the Xi leadership; second, foreign policy that the Xi administration has implemented since the 18th Party Congress in 2012; and third, the prospects for China's foreign policy under the Xi leadership. As the Xi Jinping administration entered into office, it has encountered two major diplomatic challenges. One is the searching for a new foreign policy, and the other the restructuring of the existing foreign affairs and national security systems. The Xi administration, during its first year in office, has responded actively to tackle these issues. To begin with, it has attempted to make some adjustments on foreign policy while maintaining the Deng Xiaoping line of foreign policy. One of these modifications is placing emphasis on national "core interest," as illustrated by changes in guideline for maritime conflicts, pushing for building maritime power, and proclamation of Air Defense Identification Zone in the East China Sea. Second is the decision on the new guideline for peripheral diplomacy. That is, the administration regarded creating peaceful and stable environments to realize "Chinese Dream" as an important goal of foreign policy, and proposed such new guiding ideology as "familiarity, integrity, benefit, and accommodation." In additoin, the Xi administration restructured the existing foreign affairs and national security systems. Establishing the Central State Security Committee and the Internet Leading Small Group (LSG) are cases in point. As comprehensive organizations for policy coordination that encompass party, government, and military, the two LSGs are in charge of enacting related policies and fine-tuning policy implementation, based upon leadership consisting of chiefs of each relevant organs. Moreover, since Xi himself became the chief of these two newly-found organs, the conditions under which these LSGs could demonstrate unified leadership and adjusting role in its implementation of military, diplomatic, and security policies were developed. The future Chinese diplomacy will be characterized with three main trends. First, peripheral diplomacy will be reinforced. The peripheral diplomacy has become far more important since the Work Conference on Peripheral Diplomacy in October 2013. Second, economic diplomacy will be strengthened with an eye on reducing the "China Threat Theory," which still exists in Asia. Third, the policies to isolate the Philippines and Japan will continue in regard to maritime disputes. All in all, Chinese diplomacy in the Xi Jinping era is likely to feature practical diplomacy which combines both hard and soft approaches to best realize Chinese national interest.

• Journal of Preventive Medicine and Public Health
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• v.15 no.1
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• pp.17-31
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• 1982

A physician assumes toward his patient the obligation to use such reasonable care and skill as is commonly possessed and exercised by physicians in the same general line of practice in the same or similar localities and to use his best judgment at the times. Medical disputes between physicians and patients are, ever more increased in these days as human body, happens to cause a variety of changes in body unlike the function of machine. Such increased trends of medical disputes became a problem in common across the word under the influence of affluent living standard, high consciousness of life value and right by today's people. The aim of this dissertation is oriented to forming a physician's responsibilities in medicalcare accidents arising between physicians and patients. A general physician, for example, has not been negligent merely because, a specialist might have treated the patient with greater skill and knowledge. However, the fact that a physician may have acted to the best of his ability will not avoid legal problems for damages resulting from substandard treatment, that is the degree of care and skill which is to be expected of the ordinary practitioner in his field of practice. The duty of a physician who is, or holds himself out to be, a specialist is greater in the field of his specialty than one who is a general physician. A patient's consent to routine medical procedures is implied from the fact that patient comes to the physician with a medical problem and voluntarily submits to the procedures. For the more serious medical procedures and for major operations, however, it is preferable for the physician to have the patient's consent in writing, to facilitate proof of the consent in the event of a dispute or litigation. Suppose that mistakes on the part of physicians are likely to be blamed in all cases of malpractice. Then it will create a sort of shrinkage in activities of medical treatment. There should be some limitation on excessive application of 'The thing speaks for itself' on mistakes by physicians and availablity of cause and effect. It is a matter of complicity as well as a matter of importance to draw a definite boundary on responsibilities of physician. A series of further research on this particular aspect is strongly urged.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.19
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• pp.191-223
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• 2003

Electronic commerce and the Internet offer unprecedented opportunities. The explosive expansion of the use of the Internet makes it possible for businesses to expand their markets and render services. Global transaction costs are easy to cut off using Internet and transaction speed is faster than before. Where cyberspace is not free from claims, Offline transaction can lead to problems and disputes the same is for cyberspace transactions. However ADR is not meet for the online transaction for speed, cost and open network system, ODR methods to resolve electronic commerce conflicts is crucial for building confidence and permitting access to justice in an online business environment. The use of the Internet and the network in dispute resolution has an impact on the types of communication implied in the relevant processes such as automated negotiation, online mediation and online arbitration and involves new technological issues such as the integrity and confidentiality of data and communication used to transmit and store data. Among the ODR systems Online Arbitration is currently binding both parties disputed and can achieve the aim of dispute award the same as the traditional arbitration. Arbitration is based on the New York Convention 1958, Arbitration Model law 1985 and national Arbitration Act that are founded on territorial area and rested on arbitration agreement, constitution of the arbitral tribunal, due process, final and binding award and enforcement of the arbitration award. To compare with this issues Online arbitration has unnecessarily legal unstability and risk. ODR is the burgeoning field and has created a new issues. All such issues which have been debated in the ADR are composed with ODR. But these are not limited Some of issues are further complicated by the nature of the online environment such as confidentiality and principle of parties. It is true that online arbitration should comply with legal provisions, but which is impossible to adhere of the law. Flexible translation and functional equivalence of legal provisions are needed for acceptance of electronic commerce disputes. Finally electronic commerce now takes place on the Internet, it is inevitable that the commercial world wants access to dispute resolution process that best suits the new commercial environment. ODR methods are processing for development and legal issues are considered by both national and international authorities. Introduction of new Conventions or amend Convention and Model law of ODR comes near.

• Journal of Arbitration Studies
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• v.12 no.2
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• pp.263-302
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• 2003

Since new Korean arbitration law was modeledafter UNCITRAL Model Law on International Commercial Arbitration Law, the judicial review on the arbitral award is at most limited to fundamental procedural justice. Thus, drafting valid arbitration clause is paramount important to enforce arbitral awards in the new legal environment. A losing party in arbitral process would often claim of the invalidity of arbitration agreement to challenge the arbitral award. Especially, the validity of arbitration clause in the construction contracts is often challenged in Korean courts. This is because the construction contracts usually include selective arbitration agreement in multi-tiered dispute resolution clause that is drafted ambiguous or uncertain. In this paper selective arbitration agreement means a clause in a contract that provides that party may choose arbitration or litigation to resolve disputes arising out of the concerned contract. On the hand multi-tiered dispute resolution clause means a clause in a contract that provides for distinct stages such as negotiation, mediation or arbitration. However, Korean courts are not in the same position on the validity of selective arbitration agreementin multi-tiered dispute resolution clause. Some courts in first instance recognized its validity on the ground that parties still intend to arbitrate in the contract despite the poor drafted arbitration clause. Other courts reject its validity on the ground that parties did not intend to resort to arbitration only with giving up their right to sue at courts to resolve their disputes by choosing selective arbitration agreement. Several cases are recently on pending at the Supreme Courts, which decision is expected to yield the court's position in uniform way. Having reviewed recent Korean courts' decisions on validity and applicability of arbitration agreement, this article suggests that courts are generally in favor of arbitration system It is also found that some courts' decisions narrowly interpreted the concerned stipulations in arbitration law despite they are in favorable position to the arbitration itself. However, most courts in major countries broadly interpret arbitration clause in favor of validity of selective arbitration agreement even if the arbitration clause is poorly drafted but parties are presume to intend to arbitrate. In conclusion it is desirable that selective arbitration agreement should be interpreted favorable to the validity of arbitration agreement. It is time for Korean courts to resolve this issue in the spirit of UNCITRAL model arbitration law which the new Korean arbitration law is based on.

• Korean Journal of Construction Engineering and Management
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• v.19 no.4
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• pp.34-42
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• 2018

Apartment is a typical type of housing preferred by the majority of people. However, and defect disputes occur because various defects such as cracks, subsidence, breakage, water leakage, dew condensation and dropout are confirmed with numerous structures and finishing materials. From this point of view, this paper analyzes defect frequency and costs of each warranty period by work types, and estimates defect risks by using defect dispute cases. It examined about 5,337 defect items for 32 apartment over ten years old. In this paper, there are 10 types of work types and the warranty liability period is divided into 6 categories. Based on these categories, defect frequency and costs are investigated, and finally defect risk of the warranty liability period by work types confirmed. As a result of this analysis, it was found that defect risk in RC and finishing work is very high. Especially the RC work revealed that there is a high risk of trying from the third year onwards and it was found that the defect risk up to the second year is high in the finishing work. Due to aging of RC structure, the defect risk gradually increases, and finishing work initially cause defect disputes because of the housing environment.

• Korean Journal of Construction Engineering and Management
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• v.19 no.5
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• pp.111-120
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• 2018

Recently, Domestic public construction projects are experiencing a great deal of disputes because of the growing uncertainty about the criteria for calculating the prolongation cost. In addition, researchers have been studying various systems and proper cost estimates in an effort to reduce the uncertainty of these systems and the occurrence of disputes. However, there is no standard yet for social consensus. Meanwhile, The study on the classification system according to the recognition standard of accounting has been systematically studied. As a result, the concepts of accrual and cash basis are defined separately. The purpose of this study is to verify the possibility of applying the concept of 'accrual basis' to the Standard for calculation of prolongation cost. Therefore, As a result of analyzing the occurrence pattern of Job-site overhead cost, it is confirmed that actual costs can not be calculated by the cash-basis method. In particular, the implications of the necessity of the accrual-basis method should be more strictly indicated in the case of items such as indirect labor costs and welfare benefits. In addition, the contractor 's claim report and the appraisal report were examined. As a result, it was confirmed that the calculation situations of prolongation costs are biased to the cash-basis method. In this way, it is suggested that necessary to supplement the calculation standard of the actual costs from the point of view of accrual basis.

• Journal of Korean Philosophical Society
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• v.144
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• pp.51-82
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• 2017

In Meditation II, Descartes questions "sed quid igitur sum" ("But what then am I?"). To this question to rule our essence, A. Clark insists that "We are soft selves". The idea by Clark is a spontaneous conclusion of the extended mind theory stating that cognitive process, cognitive state, and self may be extended over biological organisms. However, it seems that it is difficult for the extended self to have the qualifications as a moral agent. There have been disputes about expandability of cognitive process and cognitive state, but there have not been many disputes about the possibility of accountability of behavior by the extended self. First of all, in this thesis, it will be revealed that the extended self through the analysis of metaphorical theories and the ontological essence of agent and behavior by G. Lakoff and M. Johnson is just metaphorical rhetoric, which is not suitable for rational comprehension of ontological essence of agent and behavior. Moreover, the analysis of problem about artificial moral agent (AMA) proposes the "Strong First-person Viewpoint" as a requirement of the agent. Finally, the concept of extended self will be shown to be unsuitable for theoretical explanation of us, and the concept of human person will be proposed as an alternative solution.

• Korean Journal of Construction Engineering and Management
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• v.20 no.6
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• pp.98-106
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• 2019

Recently, the number of project delay-related claims and disputes in Korean construction projects has been increasing rapidly. This suggests that the domestic construction contract practice, which has traditionally been superior to the client, is changing into a mutually balanced relationship among the contracting parties. The project delay analysis selects the application method according to the type of schedule approved at the start of the construction and how the schedule management was performed during the construction. The most important prerequisite for project delay analysis is that a complete CPM schedule agreed at the beginning of the construction is prepared and the actual progress of such schedule is well documented. This study is about applying the project delay analysis methodology of a case where a contractor claims damages to a client while constructing a large new private building construction project. In this study, it is determined whether the application of the as-planned analysis method is appropriate to the incomplete CPM schedule and then proposes the as-planned vs. as-built analysis method based on the new standard as an alternative. Next, apply the as-planned vs. as-built analysis method to the schedule in the case project, and then compare it with the result of the as-planned analysis method. The purpose of this study is to suggest a project delay analysis method suitable for the domestic schedule management practices, so that it can be used as a meaningful reference in project delay disputes and litigations of domestic construction projects.

• (The)Study of the Eastern Classic
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• no.37
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• pp.345-375
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• 2009

In relation to body conception, the introduction of western medicine to Joseon Korea started off some points in disputes: the one was whether the western anatomy was positive or not, the other was whether the cognition was ruled by heart or brain. In the long run of these disputes, that who had clarified the change of body conception was Choi Han Kee. His new conception of body was characterized as follow: on the one hand, it emphasized the mechanical conception of body; on the other hand, it emphasized the cognitive ability of body. But that his conception of body had obscure points: that is, its mechanical conception was intervened by chi(神氣), and his doctrine of cognition searched for the origin of cognition in balance of chi of the body. He had set up this conception of body by the combination of western medicine and chi, but the combination did not seem to be perfect. This point had appeared again in his conception of physics that he thought the basis of medicine. He had pursed the combination of chemical element and chi, but it could not be accomplished successfully unless he had abandoned the organicist conception of chi. In conclusion, his new conception of body was not free from the suspicion of a incomplete tentative construction.