• Title/Summary/Keyword: Indemnification for damage

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A Juridical Approach to Causal Relations between Ocean Freight Shipping and Seaworthiness of Vessel (해상화물운송에 있어서 선박의 감항성(勘航性)과 인과관계(因果關係)에 관한 법리적(法理的) 접근(接近))

  • Park, Chang-Sik;Kim, Cheong-Yeul
    • Journal of Korea Port Economic Association
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    • v.22 no.2
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    • pp.83-108
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    • 2006
  • Regarding the ocean carrier's responsibility for damage indemnification, both his or her duty of care and reason of legal exemption have been considered important. The International Convention for the Unification of Certain Rules relating to Bills of Lading also provides that the ocean carrier indemnifies for the loss or damage of freight on the basis of the principle of liability with fault. In other words, the carrier assumes responsibility only for the loss or damage of freight which is under his or her control and whose safety must be carefully maintained by him or her. The carrier's duty of care which is required for freight safety in accordance with the convention is associated with two themes, seaworthiness of vessel and freight itself. To make ocean freight shipping effective necessities the seaworthiness of the ship that will conduct the shipping service under its responsibility. This will ultimately lead to making the service impressive to the shipper as freight owner. Thus the purpose of this study is to contribute to more reasonable shipping by the shipowner or the carrier who needs to ensure seaworthiness of vessel, and prevent unseaworthiness that may be incurred in accordance with freight characteristics. For the purpose, this paper reviewed the meaning of seaworthiness of vessel through a juridical approach to its causal relationship with ocean freight shipping.

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Liability for Damage due to Doctors' Unfaithful Medical Practice (의사의 불성실한 진료행위로 인한 손해배상책임)

  • Jeon, Byeon-Nam
    • The Korean Society of Law and Medicine
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    • v.15 no.2
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    • pp.317-343
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    • 2014
  • In order to account for whether a doctor should indemnify damages resulted from violation of duty of care, the fact that a doctor violated duty of care, that damages were incurred, and the link between violation of duty of care and damages incurred, respectively, should be verified. So even though a doctor violated duty of care to patients, he or she will not bear the responsibility to indemnify damages unless it is not verified. If a doctor's negligence in medical practices is assessed that obviously unfaithful medical practice far exceeds the limit of admission of a patient, it will not go against people's general perception of justice or law and order to constitute a medical malpractice itself as an illegal action that will require liabiliy for damage. However, when the limit of admission is set too low, a patient's benefit and expectation of proper medical treatment can be violated. In contrast, if the limit of admission is set high, it can leave too little room for doctors' discretion for treatments due to a bigger risk of indemnification for damages. Thus, a reasonable balance that can satisfy both benefit and expectation of patients and doctors' right to treatment is needed.

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A Comparative Legal Study on the Damages in the International Sale Laws (국제물품매매에서 손해배상청구권에 관한 비교법적 고찰)

  • OH, yon-Sok
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.77
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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.

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A Study on the Improvement Method on Calculating the Damages Caused by the Bid Rigging in the Construction Work (건설공사 입찰담합으로 인한 손해액 산정 개선방안 연구)

  • Min, Byeong-Uk;Park, Hyung-Keun
    • KSCE Journal of Civil and Environmental Engineering Research
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    • v.37 no.6
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    • pp.1053-1061
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    • 2017
  • The study is concerned with providing the improvement method on making a reasonable and scientific decision on the damages accrued from the bid rigging in the construction work. According to the review on the precedent studies and decision cases on the damages caused by bid rigging, the representative problems include the insufficiency of the classification system on the damage calculation method and the omission of the necessary stage in the damage determination process. First, the improved classification system on calculating the damages caused by bid rigging is presented with the application to the bid rigging in the construction work by adding the ratio factor in addition to the damage calculation parameters such as price and cost. Second, the standard procedures organized with six stages is presented as the process required for determining the damages if the indemnification for bid rigging is claimed. The study becomes the foundation for resolving the problem with the undue burden on a party and for preventing the opportunity loss by resolving a dispute early through the improvement classification system and standard procedures presented in the study.

A Study on Compensation for Damage in Civil Litigation of Japanese Long-term Care Facilities (개호사고에서 손해배상책임에 관한 연구 -일본의 판례를 중심으로-)

  • Jeong, Da-Young
    • The Korean Society of Law and Medicine
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    • v.19 no.2
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    • pp.173-207
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    • 2018
  • Japan is a super-aged society where the proportion of the people aged over 65 is exceeded 20%. Therefore, there are many accidents that occur in long-term care facilities in Japan, and there are many civil litigations. The Japanese court has acknowledged in many cases that the long-term facility is responsible for the damage to the elderly who is injured in the facility. The cases can be divided into ① tumbling down, ② wandering, ③ suffocation, ④ bedsore, and ⑤ accidents among the facility-users. In most cases, the court found that the facility violated its obligation to protect their users. This is not only the case where the manager or the employee of the facility violates the obligation to watch and care for the elderly, but in some cases, the failure to maintain the human and material system itself is recognized. The basis for such judgment is whether the facility can predict the possibility of an accident and whether the facility has taken measures to prevent accidents. Also, the Japanese court recognizes the transfer of burden of proof in order to expedite the victims' rights. However, the liability of the facility for damages should not be so heavy that it would be hesitant to allow a person to enter the facility and make a contract.

An analysis of Empirical Studies of Musical Literary Work Plagiarism Standard : The Popular Music (음악저작물 표절 기준에 관한 고찰 : 대중음악을 중심으로)

  • Jo, Jin-Wan;Shin, Mi-Hae;Park, Areum;Kim, Young-Chul
    • The Journal of the Korea Contents Association
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    • v.14 no.3
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    • pp.176-185
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    • 2014
  • This study deals with the precedents regarding music works among 'The suits to claim an infringement of copyright' and 'Suits to claim indemnification for damage' that have been filed in Korea up so far in order to establish clear criteria to judge plagiarism based on the ground of legal judgment and judge the similarity of two works that have been in controversy previously. The study has been performed through literature review and also precedents. According to the study result, 'criteria to judge music works on plagiarism' are largely classified into (1) creativity, (2) access, and (3) substantial similarity. It is almost the same to judge creativity and substantial similarity. With the components of music works, say, melody, harmony, and rhythm, comparative analysis is conducted. About creativity, the original composer's song is analyzed with another object to be compared whereas about substantial similarity, two songs in controversy get to be analyzed. Regarding the current criteria to judge creativity, it is needed to set the number of objects to be compared which have been regarded similar. And access has limitations in setting up objective criteria for it. Lastly, we should develop digitized criteria for substantial similarity based on the preliminary review system of the Committee on Performance Ethics in the past.

A Study on the Current Fire Insurance Subscription and Solutions for Ensuring the Safety of the Traditional Market (전통시장 안전성 확보를 위한 개선방안: 화재보험 가입실태를 중심으로)

  • Kim, Yoo-Oh;Byun, Chung-Gyu;Ryu, Tae-Chang
    • Journal of Distribution Science
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    • v.9 no.4
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    • pp.43-50
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    • 2011
  • Concerning the risk factors of the outbreak of a fire in a traditional market, most of those markets are located in downtown areas or residential areas; thus, although their location may be favorable in terms of marketability, they face a potential risk in that a fire may develop into a large blaze owing to poor environment or the absence of facilities prepared for disaster during a fire. Moreover, as many people are densely poised in the markets, it is very probable that a fire may occur owing to the excessive use of heaters in the winter as well as the reckless use of electric and gas facilities. It seems that traditional markets encounter difficulty being insured against fire, because of their vulnerability and that the vast majority of small-scale sellers are likely to suffer mental anguish and tremendous physical injury in case of a fire. However, most of those sellers in the traditional markets are hand-to-mouth sellers, and they lack awareness of safety concerns and have insufficient experience in safe facility management. As small-scale sellers constitute the majority in the traditional market, the subscription rate of fire insurance in most of the traditional markets is low for the reasons of their needy circumstances and their financial burden. Statistically, the subscription by street vendors is non-existent; therefore, these vendors have a fairly limited access to indemnification after fire damage. Because of these problems, this study's purpose is to identify the current level of insurance subscription by these markets, which are exposed to poor facilities and vulnerability to fire. In order to fix this, it appears that shop owners and consumers will have to band together. For this study, we executed a fire policyholder fact-finding mission at traditional markets with approximately 108 and 981 stores. The research method was executed by an investigation using one-on-one individual interviews using a questionnaire. The contents investigated current insurance subscriptions. The method of analysis looked at the difference of insured amount according to volume size through cross-tabulation of the difference of insured amount by possession form, difference of insured amount by market form, difference of insured amount by category of business, difference of insured amount by market size, etc. Furthermore, the study should be used to propose solutions for problems through theoretical review with the use of a literature research, because the field case study was through interviews with the persons concerned, and the survey of the current insurance subscriptions by traditional market shopkeepers. The traditional market would generally have difficulty affording fire insurance. Fire insurance subscription rates of most of the market proved to be inactive, because of the economic burden of payment. Lack of funds is thought to be the main factor that causes a lack of realization about the necessity of fire insurance. In addition to expensive insurance premiums, sometimes, the companies' valuation of the businesses is lower than their actual valuations, and they do not pay out enough during a claim. The research presents an improvement plan that, when presented at the traditional markets, may strengthen their ability to procure fire insurance through the help of the central government. Researchers connected with the traditional market mainly accomplish the initial research. However, although this research has its limitations, it offers considerable benefits. For future researchers, I would suggest looking at several regions for comparison.

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The assessment of Seoul City school sheriff system and developmental expansion plan - Around the righteousness proof of the security industry law application - (서울시 학교보안관 제도의 평가와 발전적 확대방안 - 경비업법 적용의 당위성 논증을 중심으로 -)

  • Lee, Sang-Hun
    • Korean Security Journal
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    • no.29
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    • pp.163-191
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    • 2011
  • Recently, the problems in school violence did not stop on the crime between the members at the school and which developed into the invasion crime of the school caused by outsiders. The school is no more the safety zone from the crime. Particularly, in the case of the elementary school, because there are nearly no people who oppose to the outside attacker and can control this, it is the place where it is vulnerable to the invasion crime. The Metropolis of Seoul implements the School Sheriff system within the jurisdiction bureau, in the public elementary school. However, actually the School Sheriff business is being managed, never applying a rule in the Security Industry Law with the main content, that is the Security Industry Law application is excluded. Because the jurisdiction on the contract of Seoul City and operating company are run, the various issues is caused. First, since it is not being considered as a security business, the commercial liability insurance for security company has no chance to applicate when the operation company and the School Sheriff have related damage generation. So the security for the indemnification of loss of the victim is weak. Second, The task of the School Sheriff is ruled just by in the individual contracts. But it is insufficient with this thing. The related duties are required some supplement like a general rule application including the obligation of the guard in the security industry law. Third, the education of the School Sheriff needs to connect with the educational programme in the security industry law. The related professional education specially needed for the prevention of school violence ought to be reserved compensation. Forth, the citizens still demand the strengthening of police patrol for the surroundings of a school in spite of the result of Seoul City's public survey. Therefore, the active relation of cooperation with the police needs to be supported legally and institutionally with the Security Industry Law application. Fifthly, the success of the School Sheriff business can be more guaranteed with the supervision of the legal and institutional device like a the Security Industry Law application or police and all sorts of administrative execution's and etc.

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Compensation for Personal Injury and the Insurer's Claim for Indemnity - Focused on the NHIC's Claim for Indemnity - (인신사고로 인한 손해배상과 보험자의 구상권 - 국민건강보험공단의 구상권을 중심으로 -)

  • Noh, Tae Heon
    • The Korean Society of Law and Medicine
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    • v.16 no.2
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    • pp.87-130
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    • 2015
  • In a case in which National Health Insurance Corporation (NHIC) pays medical care expenses to a victim of a traffic accident resulting in injury or death and asks the assailant for compensation of its share in the medical care expenses, as the precedent treats the subrogation of a claim set by National Health Insurance Act the same as that set by Industrial Accident Compensation Insurance Act, it draws the range of its compensation from the range of deduction, according to the principle of deduction after offsetting and acknowledges the compensation of all medical care expenses borne by the NHIC, within the amount of compensation claimed by the victim. However, both the National Health Insurance Act and the Industrial Accident Compensation Insurance Act are laws that regulate social insurance, but medical care expenses in the National Health Insurance Act have a character of 'an underinsurance that fixes the ratio of indemnification,' while insurance benefit on the Industrial Accident Compensation Insurance Act has a character of full insurance, or focuses on helping the insured that suffered an industrial accident lead a life, approximate to that in the past, regardless of the amount of damages according to its character of social insurance. Therefore, there is no reason to treat the subrogation of a claim on the National Health Insurance Act the same as that on the Industrial Accident Compensation Insurance Act. Since the insured loses the right of claim acquired by the insurer by subrogation in return for receiving a receipt, there is no benefit from receiving insurance in the range. Thus, in a suit in which the insured seeks compensation for damages from the assailant, there is no room for the application of the legal principle of offset of profits and losses, and the range of subrogation of a claim or the amount of deduction from compensation should be decided by the contract between the persons directly involved or a related law. Therefore, it is not reasonable that the precedent draws the range of the NHIC's compensation from the principle of deduction after offsetting. To interpret Clause 1, Article 58 of the National Health Insurance Act that sets the range of the NHIC's compensation uniformly and systematically in combination with Clause 2 of the same article that sets the range of exemption, if the compensation is made first, it is reasonable to fix the range of the NHIC's compensation by multiplying the medical care expenses paid by the ratio of the assailant's liability. This is contrasted with the range of the Korea Labor Welfare Corporation's compensation which covers the total amount of the claim of the insured within the insurance benefit paid in the interpretation of Clauses 1 and 2, Article 87 of the Industrial Accident Compensation Insurance Act. In the meantime, there are doubts about why the profit should be deducted from the amount of compensation claimed, though it is enough for the principle of deduction after offsetting that the precedent took as the premise in judging the range of the NHIC's compensation to deduct the profit made by the victim from the amount of damages, so as to achieve the goal of not attributing profit more than the amount of damage to a victim; whether it is reasonable to attribute all the profit made by the victim to the assailant, while the damages suffered by the victim are distributed fairly; and whether there is concrete validity in actual cases. Therefore, the legal principle of the precedent concerning the range of the NHIC's compensation and the legal principle of the precedent following the principle of deduction after offsetting should be reconsidered.

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