• 무역상무연구
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• 제66권
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• pp.119-148
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• 2015

Generally, the liability for breach is defined as the civil liability that arises from the conduct of violation of a contract. There are two notable principles governing liability for breach that have fundamental impacts on the unified Contract Law of the People's Republic of China (hereinafter Chinese Contract Law) in the remedies. In China, during the drafting of the Contract Law, there was a great debate as to whether damages for breach of contract ought to follow the fault principle or to follow the strict liability principle. Ultimately the Chinese Contract Law follows the model of the CISG on this point, namely, it follows the strict liability principle (article 107) with an exemption cause of force majeure. Under Chinese Contract Law, it is interpreted as strict liability in principle. Strict Liability is a notion introduced into Chinese Contract Law from the Anglo-Saxon Law. The strict liability or no fault doctrine, on the contrary, allows a party to claim damages if the other party fails to fulfill his contractual obligations regardless of the fault of the failing party. Pursuant to the strict liability doctrine, if the performance of a contract is due, any non-performance will constitute a breach and the fault on the party in breach is irrelevant. This paper reviews problems of legal character or legal ground of contractual liability in Chinese contract law. Specifically, focusing on the interpretation of Chinese contract law sections and analysis of three cases related contractual liability in freight agency, the paper proposes some implications of structural features of Chinese contract law and international commercial transactions.

• 한국도로학회논문집
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• 제20권1호
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• pp.1-8
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• 2018

PURPOSES : Case studies of an asphalt-overlay project with a performance-based contract method were conducted on a national highway in Korea to evaluate the effect of the method on asphalt pavement maintenance. This study evaluated the procedure of the performance-based contract method. METHODS : In this study, an asphalt-pavement maintenance project for a national highway was assessed with a performance-based contract to investigate the advantage of the new contract procedures. This is the first trial applying the performance-based contract to a pavement-rehabilitation project in Korea. In the four case studies, the warranty period of the performance-based contract was designed for seven years. The research team monitored the construction site to compare the normal contract method with the performance-based contract method. The case studies' project sites were investigated after the end of the construction. RESULTS : Based on the limited case studies, the performance-based contract method could extend the service life of the asphalt pavement and reduce the pavement-maintenance budget because the quality control was well managed by the contractors. However, a few construction laws would be necessary to apply the performance-based contract method in the future. CONCLUSIONS : Using the performance-based contract, the construction company made great efforts to guarantee the warranty period and to apply the optimal maintenance method, based on the pavement distress condition. The contractor and the agency would need to understand the new performance-based contract system for it to be activated. Therefore, a proper education program for the performance-based contract system would be needed to educate the stakeholders regarding the procedures and their effects on the pavement management and maintenance.

• 국제학술발표논문집
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• The 1th International Conference on Construction Engineering and Project Management
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• pp.469-473
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• 2005

Contract design plays a key role in the life cycle of BOT project. All project management activities and operation processes are arranged in consistence with the document of BOT contract which the public sector ensures that the respective roles and responsibilities set out in the contract are fully understood and fulfilled to the contracted performance criteria. With limited theories to deal with some fundamental issues of BOT contract design, we try to collect data from case studies and formulate several practical principles. The conclusions presented in this paper are analyzed from two cases, one is based on an early case in the United Kingdom, and the other based on the Taiwan High Speed Railway case. The purpose of this paper is not about covering all legal issues about BOT contract design, but rather, our work provides common considerations applicable to the contract parties of a broad range of BOT contracts. The results in this paper shall propose some fundamental principles of the BOT contract design.

• 무역상무연구
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• 제57권
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• pp.3-34
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• 2013

In the international sales contract, long-term contracts often face hardship in fulfilling the original contract terms by relevant parties due to rapid change and uncertainty of political and economic circumstance. In this case, party who faces hardship of fulfillment terminates contract or demands adaptation to contract condition but if opponent doesn't accept this, it proceeds to commercial dispute needing legal interpretation. Generally it is wise to set forth governing law in contract between parties in the case of international contract, for legal stability. One of universal governing law which relevant parties select by agreement to solve economical hardship of fulfillment is PICC. PICC defines the hardship in detail for renegotiation on following hardship of fulfillment unexpected. In the case of failing renegotiation, Court(arbitral tribunal) conducts termination to contract or adaptation to contract condition through arbitration or mediation. In conclusion, when signing international long-term contract, it is desirous to handle dispute effectively by inserting provisions which can deal with economical hardship in contract or defining PICC as governing law in the case of hardship incurred. It is because it is realistic to handle dispute smoothly to the extent that both parties can be satisfied in the case of hardship incurred, though international contract should be fulfilled.

• 무역상무연구
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• 제54권
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• pp.3-44
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• 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.

• 한국건설관리학회논문집
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• 제6권5호
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• pp.177-185
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• 2005

건설공사의 불확실성은 빈번히 클레임에 노출된다. 대부분의 경우 이러한 클레임에 대한 기본적인 해석은 공사계약서를 기준으로 하게 된다. 이러한 계약서 작성시의 문제는 발주자나 시공자가 부담하여야 하는 계약적 위험(risk)이 어떻게 규정되어 있어야 합리적인 수준인가를 판단하는 것인데 이러한 판단을 위해서는 FIDIC 계약조건과 같이 국제적으로 합리성을 인정받는 표준계약조건을 참고하는 것이 합리적이라 하겠다. 이에 본 연구는 FIDIC 계약조건을 기준으로 국내 공공공사에서 일반적으로 사용하는 공사계약일반조건에 내재되어 있는 불공정, 불합리 조항을 분석하여 세계적 수준에 맞는 공사계약조건을 제시하고자 위험관리의 관점에서 공사 계약조건을 분석하고, 여기서 도출되는 위험요인을 검증하며, 이에 대한 대응방안을 모색함으로써 공사계약일반조건의 위험요인 감소방안을 제시하고자 한다.

• International Journal of Computer Science & Network Security
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• 제21권12spc호
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• pp.544-548
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• 2021

Scientific and technical development, as well as the emergence of new types of contracts, which do not have their expression in current legislation, force us to explore the issues of contract law to adapt to change. In this context, the principle of freedom of contract is fundamental, which states that each person has the right to enter into a contractual relationship at his discretion. However, such freedom is not absolute, because the freedom of one person should not violate the freedom of another. Together with the conflict of private and public interests, these phenomena are a field for the study of topical issues of theory and application of the principle of freedom of contract in practice. Research methods are philosophical, general scientific, and special scientific methods, in particular, system-structural, formal-legal, hermeneutic; methods of analysis, synthesis, etc. As a result of the research, the main characteristics of the principle of freedom of contract, its role for private law regulation of contract law are given; approaches to understanding the restriction of contract freedom are analyzed; typical examples and means of such restrictions are identified; demonstrated how contract freedom is embodied in the use of IT tools, which types of contracts are most common in the digital environment.

• 무역학회지
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• 제47권1호
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• pp.131-144
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• 2022

This study primarily concerns the Model Contract for International Sale of Manufactured Goods recently published by International Chamber of Commerce in 2020. To this end, this study examines the importance of the ICC model contract and its main characteristics, and considers in what form the contract is composed of and the scope of its application by classifying it according to the object of the contract, the subject and type of the transaction. In addition, this study divides the main contents of the ICC model contract into special conditions and general conditions, and attempts to scrutinize details of each condition in connection with the United Nations Convention on Contracts for International Sale of Goods(1980) as a governing law taken by the ICC model contract. Furthermore, this study puts forward, on the basis of the detailed examination of main conditions of ICC Model Contract, practical implications on what the parties to the contract should be aware of when using the ICC model contract.

• 건축역사연구
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• 제15권5호
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• pp.19-39
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• 2006

This study deals with construction contract bid-rigging by Japanese contractors who monopolized the construction market of the Korean Peninsula during the Japanese colonial rule, and investigates the abuses of the contract bid-rigging. First of all, construction contract bid-rigging in Korea was triggered by Japanese construction contractors and contract brokers, who had savored the benefits of bidrigging in Japan and had repeated the bid-rigging in Korea since 1903. Second, the agency played a significant role to mediate construction contractors, and existed throughout the Japanese colonial rule on the Korean Peninsula with changing their names. Most of them were engaged in major contract bid-rigging scandals. Among them was Construction Association of Korea, which existed for over 13 years. The agencies had took part in governmental services since the mid-1930s when Japan exploited Korean people during wartime, and focused on sweating human resources for the constructions. Third, one of the biggest construction bid-rigging scandals during the Japanese colonial rule was "the 1st and 2nd scandal on Daegu construction contract bid-rigging." Indeed, the second scandal paved the way for the serial scandals: "Kyeongseong construction contract bid-rigging scandal", "Busan construction contract bid-rigging scandal", and other cases throughout the nation. Fourth, along with the contract bid-rigging cases related to the Japanese Government-General of Korea and local authorities, bid-riggings firmly took rooted in local governments' farmland reclamation projects in the 1920s and the poor relief services in the 1930s. The "bid-rigging charges" forced contractors to compensate their losses with exploiting material costs and labor costs, generating serious problems. The construction contract bid-rigging enabled Japan to monopolize the construction industry and to sweat farmers on the Korean Peninsula. Against this backdrop, contract bid-rigging by Japanese construction contractors during the its colonization made Korean contractors ruled out, and helped Japanese monopolize the industry. A large amount of bid-rigging charges drove Japanese contractors to do fraudulent work with cheap materials and to exploit Korean labor force.

• 무역상무연구
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• 제38권
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• pp.47-68
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• 2008

I have observed the validity of open-offer from a point of European contract law in comparison with International Trade Law in this paper. Generally we know that an offer is an expression of willingness bo be bound to the contract. In English law if there are no intention it will be considered such as circulation of price lists or catalogues. As for French law these activities could be considered as an offer. However German law is closer to English law as to an offer. A contract which does not ascertained price is open-price terms and it can be applied not only for general commercial contracts but also for franchise or for distributorship agreements especially in Europe. When open-price terms applied to reserve a exclusive right to the contract the validity of contract can be a serious matter between principals. In English law an offer must be sufficiently complete to be capable of acceptaqnce. English law does not require that price terms should be indicated on offer. English law allow a open-price terms in the contract. In French law a contract will be valid in the absense of a price which is either determined or objectively determinable. A price by the market price of similar products is not enough to be valid offer. It should be recognized and accepted objectively by third parties. French law require that price terms should be indicated on offer. Open-price terms are not enough to be an effective offer. However German law shows more flexible than French law. In German law if the price is not fixed in the contract there are four ways to determine it. The seller may determine the price by the time of deliver. By reason of thess backgrounds I have made comparison with European contract law and International trade law on the validity of open-price offer in this paper. It seems that we are not familiar with open-price terms although franchise contract or special terms of contract have been increased in these days. So I hope this paper will be helpful to show a new point of view.