• 한국중재학회지:중재연구
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• 제13권2호
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• pp.157-179
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• 2004

Currently major countries, including the USA, have developed and contrived to activate ADR(Alternative Dispute Resolution) in order to both choose effective means for dispute resolution and establish the reformation of the judicial system; thus meeting people's revamped expectations due to the rapid increase of, and diversification in, civil disputes. This is why there has been some haste in many countries to organize systems for this, so called, 'the Fundamental ADR Act' which regulates the essential structure to accelerate the use of ADR and strengthen the links with trial procedures. For example, in 1999 Germany revised it Civil Procedure Act, to allow for a pre-conciliation process in cases involving only small sums of money. Whilst, with regard to the Civil Procedure Act in France, new regulations have been introduced with regard to actions before either a suit or return to conciliation. In the United Kingdom, as far back as 1988, additions to the legal structure allowed for expansion of regulations applying to ADR. By 1999 the new ADR regulations were part of the legal structure of the UK Civil Procedure Act. The USA passed the federal law for ADR in 1998. Since then the world has tried to enact this model in UNCITRAL on international conciliation. When we consider this recent trend by the world's major countries, it is desirable that the fundamental law on ADR should be enacted in Korea also. This paper traces the object, and the regulatory content required, for the fundamental ADR law to be enacted in Korea's future. Firstly, the purpose of the fundamental ADR law is limited only to the private sector, including administrative and excluding judicial sector and arbitration, because in Korea the Judicial Conciliation of the Civil Disputes Act, the Family Disputes Act and the Arbitration Act already exist. Secondly I will I examine the regulatory content of the basic ADR Act, dividing it into: 1)regulations on the basic ideology of ADR, 2)those on the transition to trial procedures of ADR, and 3)those on the transition to ADR from trial procedures. In addition I will research the regulatory limitations of ADR.

• 한국중재학회지:중재연구
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• 제22권1호
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• pp.65-88
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• 2012

Even though there are some discrepancies in detail with the legal characteristic of the issuing bank's notice to the beneficiary of opening of the letter of credit, article 25 of "the Korean Private International Act(hereunder, 'KPIA')" can be applied to the legal relation between the issuing bank and the beneficiary or the negotiating bank. According to article 26 of the KPIA, if there is no agreement between the issuing bank and its opponent party as to the governing law issues, a state's law which has the closest relationship with the subject case may be applied. In the latter case, given the facts that the issuing bank plays important roles in every phasis of the sale of goods by the letter of credit, a law of place where the issuing bank's business premises is situated(the $lex$ $situs$) can be the applicable law. Meanwhile, "the Korean Supreme Court(hereunder 'KSC')" held that the beneficiary or the negotiating bank can claim any damages arising due to the refusal or deferred payment of the issuing bank, and the law which governs the above mentioned situation is the same law that is applicable to the legal relation between the issuing bank and the beneficiary or the negotiating bank. The main reason of the KSC's ruling is that the nature of the legitimate interest rate which is stated in article 3 of "the Act on Special Cases concerning Expedition etc. of Legal Proceeding(hereunder 'ASCELP')" is substantial matters, not procedural. Taking into account, however, that the main object of ASCELP lies in expedition of legal proceeding, prompt realization of people's rights and duties, and prevention of delayed legal proceeding, it is recommendable that ASCELP, instead of the law applicable to the legal relation between the issuing bank and the beneficiary or the negotiating bank, should be applied to the cases in which the malicious debtor's only and main purpose is delaying the legal proceedings. On the other hand, even if the issuing bank's duty of examination of the documents which were tendered by the beneficiary or the negotiating bank is restricted to the formality and strict conformity of the documents and not the substantiality of the documents, the issuing bank still has to examine the documents with due diligence that is required to the banks whose main business is sales of documents, not the real goods. In this regard, under the circumstances where the document lacked the regularity and/or the formality on its face because of the forgery of the document and where it was expected that an ordinary banker might have easily found any faults with the document, the issuing bank must compensate any parties for damages when it pays money without due diligence as a banker who engaged in the sales of documents.

• 무역상무연구
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• 제20권
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• pp.495-522
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• 2003

As a rapid development of electronic commerce transactions in these days, the security and private protection problems became more important matters under the electronic transaction base. Because electronic transaction using electronic documents be carried without direct person to person meeting, there can be the possibility to use other's identity illegally without notice, and very hard to verify authenticity of transaction as well. In addition, it is very hard to find out that the electronic documents on the process of submitting is forged documents or not, and also have much difficulty in maintaining transmitting secret. Therefore, to solve such problems on electronic commerce transactions and electronic documents, the digital signature and certification system with cryptography skill is inevitably necessary. As the wide use of digital signature together with beginning of digital government and financial transaction, not only the issuance of electronic certification, but certification market came to gradually expand. In Korea, after enacting digital signature act in 1999, the act contents were expanded to the wide range of contents complying with global standards from the end of 2001 to April, 2002, including the new clause of certification problems. And the act was put into operation now. Therefore, in this paper, we'd like to suggest development scheme through the investigation on electronic certification related problems, such as, concepts, procedures, service conditions here and abroad.

• 한국중재학회지:중재연구
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• 제24권2호
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• pp.183-197
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• 2014

1. This study focuses on recent developments of trade transaction between Korea and China. The volume of trade is most rapidly increasing. There have been many items considered to ensure the proper, impartial, and rapid settlement of disputes in private laws by international arbitration. The article contains recent tendencies and proceedings of cases including place of arbitration, language, and so on. 2. The contract made between parties has led to some interpretational, legal questions. Interpretational questions rise mainly from differences of legal systems and legal questions on applying law. The characteristic features of the contract have different meanings, so some articles of the contract can be construed unlawful as a result. 3. As regards the Arbitration Act of Korea, Article 10, the Arbitration Agreement and Interim Measures by Court stipulate the following: A party to an arbitration agreement may request from a court art interim a measure of protection before or during arbitral proceedings. This article examines the application of Article 10 of the Arbitration Act of Korea.

• 항공우주정책ㆍ법학회지
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• 제31권1호
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• pp.99-144
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• 2016

대상사안에서 한국인은 유럽항공사(에어프랑스)의 초과예약으로 인하여 파리에서 서울행 항공기의 탑승이 거절되었다. 대상사안에서는 국제사법 시행 이후 국제항공운송계약의 준거법, 항공권의 초과예약으로 인한 탑승거절에 대하여 항공사가 부담하는 민사책임 등이 문제되었다. 운송계약이나 소비자의 상거소지 외에서 용역이 제공되는 계약이라고 하더라도 소비자계약에 해당하는 경우에는 소비자의 상대방이 계약체결에 앞서 그 국가에서 광고에 의한 거래의 권유 등 직업 또는 영업활동을 행하거나 그 국가외의 지역에서 그 국가로 광고에 의한 거래의 권유 등 직업 또는 영업활동을 행하고, 소비자가 그 국가에서 계약체결에 필요한 행위를 한 경우나, 소비자의 상대방이 그 국가에서 소비자의 주문을 받은 경우 등에는, 당사자가 준거법을 선택하지 아니하였더라도 국제사법 제27조 제2항이 적용되어 소비자의 상거소지법이 준거법이 된다(대법원 2014. 8. 28. 선고 2013다8410 판결). 이에 따르면, 대상사안에서 문제가 된 국제항공여객운송계약도 소비자계약에 해당하므로, 준거법은 국제사법 제27조 제2항에 의하여 상거소지법인 대한민국 법이 된다. 이는 로마협약(80/934/EEC) 제5조 제4항에서 운송계약이나 소비자에 대한 용역이 소비자가 상거소를 가지는 국가 이외의 장소에서 배타적으로 제공되어야 하는 용역의 제공에 관한 계약에 대하여는 소비자의 상거소지법의 적용을 배제하는 것과 반대견해로, 외국항공사를 이용하여 국제여행을 다녀오는 내국인이 점차 증가하고 있는 상황에서 내국인 보호에 커다란 이정표가 될 수 있다. 다음으로 초과예약의 관행을 긍정한다 하더라도, 항공사는 초과예약으로 인하여 탑승이 거절된 승객에게 적절한 대체항공편을 제공하여야 하고, 만약 그러한 의무를 이행하지 아니한 경우에는 민법상 채무불이행 책임을 부담한다고 판시하여, 항공사의 민사책임을 명확히 하였다는 점에서 의의가 있다.

• 한국중재학회지:중재연구
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• 제9권1호
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• pp.161-182
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• 1999

The purpose of this paper is to examine the applicability of the UNIDROIT Principle in international commercial arbitration. For this purpose, I have studies the basic two characters of this Principles: One is of general rule(principle); Another is of international and commercial character. According to CISG, questions concerning matters governed by the CISG which are not expressly settled in it are to be settled in conformity with the general principles, so this Principles will cover many questions which are not expressly settled in the applicable law, by gap-filing, analogy or usage. In the preamble of this Principles, there are five cases in which the Principles shall be applied or may be applied. If the disputes are submitted to the any national court, the application of this Principles would be restricted because of the mandatory rules of national, international or supranational origin. But the disputes are submitted to arbitration, the arbitrator would have more discretional powers to apply the Principles than the judge. The reason is that in the arbitration, the arbitrators do not bear obligation to act in conformity with the law applicable by virtue of the rules of rules of private international law. I also examined the applicability of the Principles in cases which there are no mentions in preamble: When the international arbitrators choose the Principles; When the arbitrators decide ex aequo et bono; When the both parties have not chosen the governing law; When there are gaps in domestic law chosen by the parties; When the applicable domestic law is insufficient. In all these cases, the Principles may be applied more easily and conveniently in arbitration than in litigation. Thus to envisage the application of this Principle in international arbitration, first both parties in international commercial contracts should incorporate this Principle as a governing law in their contracts, and second, the arbitrators should try to apply this Principles in their arbitrations by choice, analogy, general principles or usage.

• 한국중재학회지:중재연구
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• 제24권1호
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• pp.3-24
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• 2014

The Arbitration Act of Korea entered into force on December 31, 1999. It was modeled after the UNCITRAL Model Arbitration Law to meet the goal of the internationalization of the arbitration system of South Korea mainly in terms of the System (Alternative Dispute Resolution) Act. In general, a hearing of arbitration is made up of an arbitrator, claimant, and respondent. This is accomplished in a single core. The advantages of arbitration are low cost and confidentiality. In addition, there is the participation of experts and rapidity with a single core agent. However, under the current Arbitration Act, there is no provision expressly relating to the qualifications of arbitrators. This should be accomplished by the arbitration act enforcement ordinance. Following specific details of the 'party' in conjunction with all the provisions of the Arbitration Act, Article 1 should be revised in a timely manner so that "conflict of private law" covers cases in which a dispute between the parties is desirable. In addition, in Article 3 the phrasing of "also dispute 'judicial'" should be revised to over disputes between parties. Furthermore, the provisions of Article 40 are described in the Supplement and so it is preferable to address Supplementary Delete. In addition, this study will analyze ADR in Japan and present a plan to establish a law to resolve disputes outside of court in that country. Therefore, the objective of this study is to assist in the study of legislating fundamental law for alternative dispute resolution. In spite of this, there are many in business and academia who would like to modify the arbitration system in South Korea to improve its function. There is much interest in accomplishing this,so proposals for legislation should continue to be made.In order to accomplish this, the arbitration systems of developed countries such as the United States can be used as a model. It can be seen that despite the idea that the parties involved engage in arbitration autonomously, many elements of the process from the selection of the arbitrator of the arbitral tribunal are specified in legislation and thus it is necessary to develop legislation that will allow arbitration to perform its intended function. Any given arbitral tribunal can be specialized, typically in a case an arbitrator who is an expert in the field is selected. This helps to avoid complaints concerning the results of the arbitration. In the case of international arbitration, however, this provision is often not employed and instead it is necessary to provide a Schedule and Supplement concerning international arbitration. Finally, the promotion of the enactment of the Arbitration Law Enforcement Ordinance must be a top priority in order to ensure proper implementation of the arbitration law.

• 한국중재학회지:중재연구
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• 제16권2호
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• pp.89-120
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• 2006

If the existence and effect of the arbitration agreement becomes an issue in international business transactions, it is the key point how we shall determine the applicable law by national rules for the conflict of laws, or by other methods. The argument in determination of the applicable law to the existence and effect of the arbitration agreement is related to regal nature of the arbitration agreement. As there are foreign factors in international arbitration, therefore we must consider such an aspect. Besides, we have to examine whether the general theory of contract is universally applicable to the arbitration agreement. Currently, it is the general trend that the party's autonomy principle is applicable in determining the applicable law for the arbitration agreement. However, it is a difficult problem to recognize the applicable law chosen by the parties, whether it is based on any regal standard(for example New York Convention or the private international law or the essential quality of the arbitration agreement). In the light of the actual transactions, when the parties don't make a choice of the applicable law expressly, it will finally come down to presuming the party's implied intent. Nevertheless, finding the implied intent is a difficult problem. Some argue that we shall presume the choice of applicable law by an objective standard such as a place of arbitration, to prevent too much expansion of the scope of the recognition. But we need to review that this interpretation harmonizes with the principle of party autonomy. Especially, if we desire to detect the vital point where it is most closely linked to the arbitration agreement, we have to inquire how we will decide such a relation by means of any standard. However, as the existing Arbitration Act doesn't offer the solution to these issues, therefore we have to settle these problems through the development of adjudications and theories.

• 한국중재학회지:중재연구
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• 제20권1호
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• pp.41-65
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• 2010

It is a matter for debate that which types of dispute may be resolved by arbitration. This problem is concerning the arbitrability of the subject-matter of a dispute. National laws establish the domain of arbitration. Each state decides which matters may or may not be resolved by arbitration in accordance with its own political, social and economic policy. In response to complexity and diversity of a social phenomenon, the dispute also is various, therefore can not be settled efficiently by means of court adjudication to which applies a law strictly. To overcome such problems we are going to seek to make use of arbitration. According to Korean Arbitration Act Art. 3 (1), any dispute in private laws would be the object of arbitral proceedings. For the promotion of fair and free competition, it is increasingly wide-ranging antitrust legislation across the world. It is matter for debate what can an arbitral tribunal do when confronted with an allegation that the contract under which the arbitration is brought is itself an illegal restraint of trade or in some other way a breach of antitrust law. The underlying question is how to accommodate the conflicting congressional policies favoring resolution of private controversies by arbitration and encouraging private suits to protect the public interests served by the antitrust laws. It is necessary to inquire into the arbitrability of antitrust issues on case-by-case basis, because the types of them are quite diverse. If antitrust issues are the dispute in private laws and the contracting parties agreed to submit to arbitration disputes which have arisen or which may arise between them in the antitrust issues, the antitrust disputes are arbitrable. Not only international antitrust disputes but also domestic antitrust disputes are capable of being resolved by arbitration. When the public interests in the enforcement of antitrust legislation are asserted, it is possible to justify the annulment or the refusal of the recognition or the enforcement of an arbitral award that ignores public policy as a matter of it.

• 항공우주정책ㆍ법학회지
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• 제23권2호
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• pp.3-29
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• 2008

항공운송과 관련하여 우리나라는 1955년 헤이그 의정서에 의하여 개정된 바르샤바협약과 1999년 몬트리올 협약에 가입하여 국제운송에 관하여는 적용할 법률을 가지고 있지만, 현재 국내항공운송에 관하여는 적용될 법률이 없는 실정이다. 법무부는 상법 내에 항공운송편을 제정하기로 결정하고, 항공운송편제정 특별위원회를 구성하였다. 동 위원회는 2008년 여름 항공운송편 초안을 완성하여 동 초안은 현재 법제처의 심의를 받고 있다. 항공운송편을 제정함에 있어서는 현재까지 성립된 항공운송관련 대부분의 조약을 수용하였다. 항공운송법의 편제는 1장 통칙, 제2장 운송, 제3장 지상 제3자의 손해에 대한 책임 등 총 3개의 장을 두었다. 우리나라가 항공운송에 관한 단행법을 제정하지 않고 상법 제6편에 항공운송편을 두어 제2편 상행위편에 육상운송을 규정하곤 제5편에 해상운송에 관한 규정을 둔 것과 함께! 통합적인 운송법체계를 가진 것은 입법례가 없는 매우 독특한 입법형식을 취한 것이다. 특히 항공기운항자의 지상 제3자의 손해에 대한 책임에 관한 로마조약체계까지도 수용하여 함께 규정한 것은 국내항공운송법체계를 완성한 것으로서 매우 의미 있는 일이라고 생각한다.