• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.17
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• pp.71-91
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• 2002

The purpose of this paper is to examine the viewpoints of the different legal systems for the validity of LD Clause and the possibility of gap-filling function of UNIDROIT Principles in International Sales Contract. The results of comparative study between common law system and civil law system, and between CISG and UNCDROIT Principles is as follows: First, common law system distinguishes LD Clause and Penalty Clause, but civil law system including Korean law does not strictly distinguish the difference between them, provided that the liquidated damages are not grossly excessive. Second, CISG does not concerned with the validity of LD Clause but entrust this matter to the law applicable by virtue of the rules of private international law; conversely the Principles follow similar position of civil law system. The possibility of gap-filling of the Principles is more positive in the case of arbitration than in the case of litigation. On the basis of above study, I also checked the LD Clauses of ICC Model International Sales and the Model Contracts of Korean Commercial Arbitration Board. The LD Clauses of there two Model Contract seem very appropriate and reasonable for the reference in practical application. The appropriate, not excessive, LD Clause will contribute not only to eliminate the burden of proof for the actual damages, but also to enforce both parties to perform their obligations in their contracts. Therefore, When we make contract, we should keep in our mind to insert the reasonable and appropriate LD Clause in the sales contract. If not, so to speak, litigated damages are grossly excessive, the Clause may be invalid in some legal system.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.49
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• pp.89-109
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• 2011

Among various export financing, forfaitng and factoring give a comfort to exporters as those special financing schemes are extended to them on a without recourse basis. This is good for the exporters in terms of financing and risk cover of buyer or LC issuing banks. To enjoy this benefit, the SME exporters should, however, know the risks involved in sales contract. For example, if the export and importer set Korean law as governing law in the sales contract especially for open account exports, the exporter's receivables might be not welcome by factors according to provisions of Korean Conflict Law and it's application. Those regulations tell that the factor's position would be unstable when the sales contact limit exporter's assignment of receivables to the factor when the sales contract is subject to Korean law. Also the exporters should know related regulation of importer which might affect the assignment of receivables as well. This paper suggests the Korean exporters take internationally recognized agreement/convention such as UNI|DROIT Convention on International Factoring, UN Convention on the Assignment of Receivables in International Trade.

• International Commerce and Information Review
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• v.4 no.2
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• pp.1-12
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• 2002

The purpose of this paper is to examine the scope of the application of Preliminary Draft Convention, which will be fixed as international uniform rules soon, in relation to the CISG. First, this Draft Convention will cover service contracts as well as sales contract of goods, but the license agreement will be excepted because it does not transfer the complete property. Second, this will cover the commercial contracts(sales or services) concluded by data message fully or partially. Third, this will be applied in international contract regardless of contracting states or non-contracting states. As it is very difficult to confirm the places of business of contracting parties in on-line contracts, the first criterion to confirm them is the indication by the party in each contract. This presumption may be supplemented, if they are not indicated in the contract, by the location of the equipment and technology supporting an information system used by a legal entity for the conclusion of a contract. It is essential to establish an international uniform rules as soon as possible in order to activate the international businesses with on-line basis. Thus this author hopes that this paper will contribute to the clear understanding to the scope of application of Preliminary Draft Convention for which the UNCITRAL is under working.

• Korea Trade Review
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• v.41 no.4
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• pp.111-129
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• 2016

In this paper, I reviewed the analysis of possible ICC model of international sale contract terms used in the international artwork trade. Based on this, the provisions proposed considering the specialties of the international artworks trade. The purpose of this research study is to help practitioners draw up a contract of international artworks trade. In Chapter II, I reviewed the highlights of the international sale of goods contract. In Chapter III, I discussed the issues that arise in creating specific provisions on the international artworks trade agreements. In Chapter IV, I discussed the issues in creating the general provisions on the international artworks trade agreements. Quantity provisions of the international artworks sales contract should include the "more or less" clause. And it should also clearly define the scope of the author's property rights transfer in the copyright provisions. Even if a buyer has been assigned the copyright of artworks from the artist, if the buyer modifies the artworks without permission, moral rights can be violated. In addition, even if a buyer has been assigned all of the intellectual property rights of the artists, if the buyer does not have the specific provisions, the buyer must keep in mind that the unauthorized publication of artworks, film production, merchandising, etc, may infringe the right to create derivative works.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.62
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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.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.33
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• pp.221-243
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• 2007

A party to a contract is bound to perform its contractual duties. But outside events may make performance impossible, physically or legally. In such a situation a party may wish to plead "force majeure" as an excuse for failure to perform. The laws of most countries have provisions which dealt with force majeure. These provisions, however, vary from country to country and may not meet the parties' requirement in international contracts. Therefore, parties to international contracts are frequently in need of contract clauses on force majeure. There are many force majeure clauses in standard forms or individually negotiated. The ICC has drawn up provisions which aim at providing assistance for parties when they are making contracts. The force majeure clause grants relief from contractual sanctions and includes provisions for suspension and termination of contract. The purpose of this study is to examine "ICC Force Majeure Clause 2003" in the international sales contract. For this purpose, firstly this study deals with the major contents of the ICC Force Majeure Clause 1985 and 2003. Secondly this study considers the related provisions under CISG, PICC, PECL and the force majeure clause in Model International Sale Contract. Thirdly this study compares ICC Force Majeure Clause 2003 with the relative provisions under CISG, PICC, PECL and the force majeure clause in Model International Sale Contract. It should be noted that the parties often need to adapt the content of this clause so as to take account of the particular circumstances of the individual contract. This paper contributes to help the parties to a contract to draft the meaningful "Force Majeure Clause" containing more precise and elaborate provisions.

• Korean System Dynamics Review
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• v.8 no.1
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• pp.173-186
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• 2007

This research consists of (1) building (or molding) the Dynamics Simulation Model on Return Policy mainly used in publications, phonographs, and computer industry; which are seen used in supply chain contract known as effective control mechanism under the varied supply chain situations, and (2) analyzing the effects that return rates and seller's contract parameters have in the outcome of the model and (3) observing how the effectiveness of Return Policy changes under such circumstances where the buyer's sales ability and the seller's risk inclination are taken into account. Thus, the main purpose of this research lies in analyzing what exactly are the effects (and or outcome) that sales ability and risk inclination have in Return Policy, and additionally by conducting comprehensive research on Supply Chain Policy Dynamics Simulation Model, we will try to prove that not only the Systems Dynamics approach is highly contributive in supply chain management but also that it will serve as a foothold in future research. As a result of the research, supply chain achievement level turned out to be high when Return Policy is enforced, and the achievement level was even higher when seller's sales ability was taken into consideration along with the Return Policy. On the other hand, the achievement level decreased when the seller had risk aversive tendencies.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.20
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• pp.3-22
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• 2003

The CISG has been effective since January 1,1988. Even if both parties of international sales contract are located in ratifying countries, the CISG does not apply to certain excluded transactions. The CISG does not apply if the parties have opted out of the CISG. When the parties opt out, they usually agree on the law that is to replace the CISG. In the context of international sales, the frequent and difficult choice of law problems will arise when the CISG applies to a transaction but does not resolve all the legal issues before the tribunal. So this article deals with the question. What should we select the applicable law in such situations? (1) For products liability issues excluded from the CISG by article 4 and 5, the court should apply the substantive law of the market state and the statute of limitations law of the forum, (2) For validity issues excluded from the CISG by article 4(a). the court should apply the UNIDROIT Principles when its rules resolve the issue.

• Journal of the Korean Dietetic Association
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• v.9 no.3
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• pp.197-208
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• 2003

This study was surveyed to provide the information on current operational practices and issues of contract-managed foodservice companies. Questionnaires were distributed to 79 contract-managed foodservice companies (eight large-size, 48 mid-size, 23 small-size companies) from March to May in 2002. The contract-managed foodservice companies provided averages of 269,184 (range 140,036-503,500), 14,837 (range 450-75,269), and 4,065 (range 930-8,050) meals daily from large, medium, and small-size companies, respectively. The companies managed to averages of 268.2 (160-619) foodservice contracts at large-size companies, 21.9 (5-63) contracts at mid-size companies, and 4.7 (1-10) contracts at small-size companies. The average numbers of dietitians were 298.6 (range 104-671) in large-size companies, 22.2(6-86) in mid-size companies, and 3.8(1-9) in small-size companies. The averages of sales were 156.5 billion at large-size companies, 6.7 billion at mid-size companies, and 1.7 billion at small-size companies in 2001. The contract was two types including management fee contract(5%), and profit and loss contract(95%). The cost ratios for office foodservice were 59.5% at food cost, 24.2% at labor cost, 6.3% at profit, and 10.1% at other cost. For hospital foodservice, the ratios were 54.0% at the food cost, 34.6% at labor cost, 3.0% at profit, and 11.8% at other cost. For high school foodservice, the ratios were 62.2% at the food cost, 21.5% at labor cost, 5.4% at profit, and 11.2% at other cost. When the contractors managed to the foodservice, the most important matters were the sanitation management and customer satisfaction. Also, the difficult problems were excess investment of equipments and low meal prices.

• Journal of the Korean Dietetic Association
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• v.10 no.2
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• pp.190-196
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• 2004

The purposes of this study were to investigate the importance level on factors affecting the foodservice management contract perceived by the salespersons in the foodservice company. To get the data on the perceived importance level on the affecting the foodservice management contract, the questionnaires were developed by the delphi technique and modified by the pilot test. The questionnaires consisted of 4 categories and 19 items on the factors affecting the foodservice management contract and the importance level on the factors were measured by 5-likert scale. From March 12 to April 13 in 2003, the self-administrative questionnaires were mailed to the 60 salespersons. The questionnaires were responded from the 48 salespersons(respondent rate : 77 %). As a result, the salesperson.perceived importance level of "the sales ability" was higher than those of the other categories in the private contract and the salesperson.perceived importance level of "the evaluation of the foodservice company" was higher than those of the other categories in the competitive bid. The importance of the "the evaluation of the foodservice company" between the private contract and the competitive bid was significantly different(p<.05), and the importance of "the sales ability" of the competitive bid was significantly higher than that of the private contract(p<.001).