• 무역상무연구
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• 제77권
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• pp.43-67
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• 2018

Arbitration is one of alternative dispute resolution systems which settle a dispute by arbitrators(private persons) based on a contract between contracting parties without a judicial litigation system involved. As a valid arbitration agreement is an essential requirement for commencement of arbitration, the first thing to be determined is whether there is a valid arbitration agreement or not when a dispute is submitted. A consumer arbitration agreement usually exists as an arbitration clause in an adhesive contract between consumers and a seller. When consumers buy a product from a seller, they are requested to agree on a general terms and conditions which are unilaterally drafted by a seller in advance. These terms and conditions are not negotiable because it is an adhesive contract and consumers are placed in "take-it-or-leave-it" position. Therefore, even though there is an arbitration agreement between consumers and a seller, it has to be carefully considered whether it has a legal effect or not. In this respect, a court will examine if an arbitration agreement has procedural unconscionability and substantive unconscionability. Therefore, as U.S is a well-advanced and arbitration-friendly country, this paper analyzes four U.S cases to find out (i) what a court considers, (ii) how a court examines and interprets procedural and substantive unconscionability and (iii) if there has been a change in regard to a court's decision. By doing so, it will provide some suggestions and guidelines for a consumer arbitration in Korea.

• 무역상무연구
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• 제64권
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• pp.3-37
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• 2014

The purpose of this paper is to examine thoroughly on passing of risk in contracts for the international sale of goods. Articles 66~70 of the CISG contain provisions on passing of risk. Article 66 states the main effect of passing risk to the buyer. Article 67~69 determine the decisive point in time which the risk passes from the seller to the buyer and article 70 attempts to explain the relation between passing of risk and fundamental breach of contract by the seller. As in the case corresponding Incoterms rules, the main issue to be resolved is which party should bear the economic consequences in the event that the goods are accidentally lost, damages or destroyed. Many cases also apply CISG articles 66~70 to contracts in which parties not agree on the use of trade terms such as CIF, CFR, FOB and FCA in Incoterms[R] 2010 Rule that provide for when the risk passes. In order to minimize disputes that may arise under contract, when drawing up a contracts for the international sale of goods, the specifics of agreement should be clearly stipulated. Consequently, the parties of contracts for the international sale of goods should take adequate measures, and it is required to prepare the contracts clearly as the specific terms to prevent and resolve contractual disputes on passing of risk.

• 정보처리학회논문지:소프트웨어 및 데이터공학
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• 제12권11호
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• pp.471-480
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• 2023

국내 건설수주 규모는 2013년 91.3조원에서 2021년 총 212조원으로 특히 민간부문에서 크게 성장하였다. 국내외 시장 규모가 성장하면서, EPC(Engineering, Procurement, Construction) 프로젝트의 규모와 복잡성이 더욱 증가되고, 이에 프로젝트 관리 및 ITB(Invitation to Bid) 문서의 위험 관리가 중요한 이슈가 되고 있다. EPC 프로젝트 발주 이후 입찰 절차에서 실제 건설 회사에게 부여되는 대응 시간은 한정적일 뿐만 아니라, 인력 및 비용의 문제로 ITB 문서 계약 조항의 모든 리스크를 검토하는데 매우 어려움이 있다. 기존 연구에서는 이와 같은 문제를 해결하고자 EPC 계약 문서의 위험 조항을 범주화하고, 이를 AI 기반으로 탐지하려는 시도가 있었으나, 이는 레이블링 데이터 활용의 한계와 클래스 불균형과 같은 데이터 측면의 문제로 실무에서 활용할 수 있는 수준의 지원 시스템으로 활용하기 어려운 상황이다. 따라서 본 연구는 기존 연구와 같이 위험 조항 자체를 정의하고 분류하는 것이 아니라, FIDIC Yellow 2017(국제 컨설팅엔지니어링 연맹 표준 계약 조건) 기준 계약 조항을 세부적으로 분류할 수 있는 AI 모델을 개발하고자 한다. 프로젝트의 규모, 유형에 따라서 세부적으로 검토해야 하는 계약 조항이 다를 수 있기 때문에 이와 같은 다중 텍스트 분류 기능이 필요하다. 본 연구는 다중 텍스트 분류 모델의 성능 고도화를 위해서 최근 텍스트 데이터의 컨텍스트를 효율적으로 학습할 수 있는 ELECTRA PLM(Pre-trained Language Model)을 사전학습 단계부터 개발하고, 해당 모델의 성능을 검증하기 위해서 총 4단계 실험을 진행했다. 실험 결과, 자체 개발한 ITB-ELECTRA 모델 및 Legal-BERT의 앙상블 버전이 57개 계약 조항 분류에서 가중 평균 F1-Score 기준 76%로 가장 우수한 성능을 달성했다.

• 무역상무연구
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• 제69권
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• pp.127-151
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• 2016

UNIDROIT Principles of International Commercial Contracts(PICC) was published in 1994. PICC has been functioned as a guideline of international commercial contracts, an applicable law to govern a contract by the agreement of the parties to a contract, general principles of law and lex mercatoria. In addition, PICC has a role of interpreting or supplementing international uniform law instruments as well as domestic laws, and also has served as a model for national and international legislations. PICC has been accepted as a authoritative source of knowledge of international trade usages of international commercial contracts to the arbitral tribunal rather than domestic court because it excluded the characteristics of hard law at the drafting stage. This article dealt with the rule on gross disparity of validity which fall outside the scope of UN Convention on Contract for the International Sale of Goods(CISG), which has obtained a leading legal position of uniform law in international sales of good. In other words, PICC suggests a series of meaningful solutions to the issue of gross disparity of contract which is the most complicated among legal disputes occurring during the process of conclusion of contact and also extremely different and diverse between legal systems. This article covered the issue of gross disparity of contract at the conclusion of contact and suggested the legal basis of several rules related to the gross disparity by analysing gross disparity rule of PICC. Furthermore, this article suggested legal check points or implication as well as interpretation and evaluation on doctrine of laesio enormis and undue influence or unconscionability. This article also dealt with a comparative analysis with Principles of European Contract Law(PECL) and Common European Sales Law(CESL) which have important legal positions in the area of international commercial contract as well as in terms of close relationship to PICC by linking with recent court or arbitral tribunal rulings.

• 무역상무연구
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• 제44권
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• pp.3-29
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• 2009

The PECL have been drawn up by an independent body of experts from each member state of the european union under a project supported by the european commission and many other organizations. Salient features of the general provisions of the PECL, freedom of contract and pecta sunk servanda, good faith and fair dealing, most of the PECL are non-mandatory. The CISG uses the term fundamental breach in various setting. The concept of fundamental breach is a milestone in its remedial provisions. Its most important role is that it constitutes the usual precondition for the contract to be avoided(Art. 49., Art. 51., Art. 64., Art. 72., Art. 73). In addition, where the goods do not conform with the contract, a fundamental breach can give rise to a requirement to deliver substitute goods. Furthermore, a fundamental breach of contract by the seller leaves the buyer with all of his remedies intact, despite the risk having passed to him(Art. 70). Basically, PECL, PICC generally follows CISG, it was similar to all the regulation's platform though the terms and content sometimes differ. For example regarding to the non-performance and remedies, in the case of non-performance, that is the PECL/PICC term analogous to breach of contract as used in the CISG. Furthermore the PECL/PICC used fundamental non-performance refered to in PECL Art. 8:103 ; PICC Art. 7.1.1. correspond generally to the concept of fundamental breach referred to in CISG Art. 25. The main significance of the fundamental non-performance, in any systems, is to empower the aggrieved party to terminate the contract. The need for uniformity and harmony in international commercial contracts can be expected to lead to growth of international commerce subject to the CISG, PICC, and PECL. It is hoped that the present editorial remarks will provide guidance to improve understanding between the contractual party of different countries in this respect and following key-words.

• 한국건축시공학회:학술대회논문집
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• 한국건축시공학회 2012년도 춘계 학술논문 발표대회
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• pp.303-305
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• 2012

This paper presents a system called a Cash-flow based Construction Scheduling Optimization (CfSO). The existing CPM is biased on schedule and cost management. For a profitable and successful project management, the cash-flow which occurred actually by contractual conditions should be considered in the project scheduling. Therefore, this study provides a method to estimate the amount of a cash-flow occurred periodically by integrating the terms of contract into scheduling. The proposed methodology is implemented as a system prototype in Microsoft Excel. CfSO helps a site manager as a decision-maker to establish a optimized project scheduling and decide profitable contractual conditions against a construction owner.

• 유통과학연구
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• 제20권4호
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• pp.101-110
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• 2022

Purpose: This study is a comparative study to examine the differences between Incoterms 2010 and Incoterms 2010 through a study on the revision contents and conditions of Incoterms 2020. Research design, data, methodology: This study is composed of 5 chapters through literature study. Chapter 1 is an introduction, and Chapter 2 explains the significance and change of standard trading conditions. Chapter 3 compares Incoterms 2020 and 2010. Chapter 4 deals with major revisions and considerations of Incoterms 2020, and Chapter 5 mentions conclusions and implications. Results: In comparison with Incoterms 2020 and Incoterms 2010, first, the selection of the correct Incoterms rules was emphasized through the introduction; second, the division and connection between the sale contract and the ancillary contract were more clearly explained; and third, each Incoterms An explanatory note was presented by improving the existing guidance note for rules, and finally, the order of clauses within individual Incoterms rules was changed to further emphasize delivery and risk. Conclusions: This study pays attention to the understanding of academic content related to standard trade terms and conditions and how usefully it can be used in the business process of users in practice.

• 무역상무연구
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• 제14권
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• pp.103-152
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• 2000

English contract law has traditionally taken the view that it is not the duty of the parties to a contract to give information voluntarily to each other. In English law, one of the principal distinctions between insurance contract law and general contract law is the existence of the doctrine of utmost good faith in insurance law. The doctrine gives rise to a variety of duties, some of which apply before formation of the contract while others apply post-formation. This article is, therefore, designed to analyse the overall structure and problems of the doctrine of utmost good faith in English marine insurance law. The results of analysis are as following : First, the requirement of utmost good faith in marine insurance law arises from the fact that many of the relevant circumstances are within the exclusive knowledge of the assured and it is impossible for the insurer to obtain the facts to make a appropriate calculation of the risk that he is asked to assume without this information. Secondly, the duty of utmost good faith provided in MIA 1906, s. 17 has the nature as a bilateral or reciprocal, overriding and absolute duty. Thirdly, the Court of Appeal in Skandia held that breach of the pre-formation duty of utmost good faith did not sound in damages since the duty did not arise out of an implied contractual term and the breach did not constitute a tort. Instead, the Court of Appeal held that the duty was an extra-contractual duty imposed by law in the form of a contingent condition precedent to the enforceability of the contract. Fourthly, the scope of the duty of utmost good faith is closely related to the test of materiality and the assured is required to disclose only material circumstances subject to MIA 1906, s. 18(1) and 20(1). The test of materiality, which had caused a great deal of debate in English courts over 30 years, was finally settled by the House of Lords in Pan Atlantic and the House of Lords rejected the 'decisive influence' test and the 'increased risk' test, and the decision of the House of Lords is thought to accept the 'mere influence' test in subsequent case by the Court of Appeal. Fifthly, the insurer is, in order to avoid contract, required to provide proof that he is induced to enter into the contract by reason of the non-disclosure or misrepresentation of the assured. Sixthly, the duty of utmost good faith is, in principle, terminated before contract is concluded, but it is undoubtful that the provision under MIA 1906, s. 17 is wide enough to include the post-formation duty. The post-formation duty is, however, based upon the terms of marine insurance contract, and the duty lies entirely outside s. 17. Finally, MIA 1906, s. 17 provides expressly for the remedy of avoidance of the contract for breach of the duty. This means rescission or retrospective avoidance of the entire contract, and the remedy is based upon a fairly crude 'all-or-nothing' approach. What is needed in English marine insurance law is to introduce a more sophiscated or proportionate remedy.

• 한국콘텐츠학회논문지
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• 제18권7호
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• pp.620-627
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• 2018

블록체인의 활용이 기업의 비즈니스 분야로 확대되면서 중요 정보의 기밀성 보호에 대한 중요성이 부각되고 있다. 블록체인은 트랜잭션의 공유와 공개에 따른 트랜잭션의 무결성 위협에 대한 보안문제를 해결하고 있으나 기밀성 보호는 취약하다. 따라서 기업에서 블록체인을 비즈니스 처리에 활용하기 위해서는 기업의 중요정보와 개인정보에 대해서 기밀성을 제공할 수 있는 보안 메커니즘이 필요하다. 이의 해결을 위해서 이더리움의 스마트 컨트랙트와 커미트먼트 스킴을 이용한 사설 블록체인 기반 암호화 프로토콜의 응용 모델을 제안하고 구현한다. 이는 사설 블록체인에 기밀성과 무결성이 강화된 스마트 컨트랙트를 통해서 비신뢰 참여자간 비즈니스를 수행할 수 있게 해줌으로써 블록체인 서비스의 활성화에 기여한다.

• 한국경영과학회지
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• 제27권1호
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• pp.19-32
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• 2002

This paper examines the effect of the producer-supplier quality contract parameters and the magnitude of the quality related variables on the quality of the final products. Our analysis focuses on the parties' equilibrium behavior In a quality game environment where the supplier should choose among the two production technologies, one requiring high cost but producing high quality Parts and the other requiring low cost but producing low quality parts and where the producer should decide whether to do the inspection of the parts. The game framework is employed to depict the potential conflicts existing between the Producer and the supplier because the Producer can not observe the supplier's choice and each party wants the other to bear the cost of producing high quality products. In our model, we specifically consider the competitive situation where the producer competes with a firm producing the same product. We employ the market share attraction model to Incorporate the competitive situation and completely characterize the equilibrium by using the Nash equilibrium concept for the game solution. Our results show that the equilibrium depends on the contract terms and the magnitude of the quality related variables. Compared to the non-competitive situation, the probability of producer's Inspection and the probability of supplier's choosing the high quality technology increases in a competitive situation. This is true even when the competitor's quality is lower than the producer's lowest. As a result, the quality of the final product increases In a competitive situation. And as the failure cost borne by the supplier increases, the probability of choosing the high quality technology Increases and the probability of inspection decreases. The net effect of this results in the decrease of the final product quality.