• Journal of Arbitration Studies
• /
• v.23 no.4
• /
• pp.55-76
• /
• 2013

This study aims to analyze the main features of Mongolian arbitration system compared with Korean Arbitration Law which was revised under the UNCITRAL Arbitration Model Law. On the basis of this comparative study, certain differences are suggested: First, the environment of Mongolian arbitration is still insufficient in terms of its operation and usage at the international level. Second, the Mongol National Arbitration Court has established Ad-hoc Arbitration Rules and has promoted Ad-hoc Arbitration although it is an institutional arbitration organization. Third, the arbitration objects are defined as the types of tangible and intangible assets in Mongolia which are different from those of the Korean Arbitration Law. Accordingly, court and officer disputes, family disputes, labor-management relations, and criminal matters are covered by the arbitration objects. Fourth, Mongol Arbitration Law specifies the following persons disqualified for arbitrator appointment: the member of the Constitutional Court, judge, procurator, inquiry officer, investigator, court decision enforcement officer, attorney, or notary who has previously rendered legal service to any party of the disputes, and any officials who are prohibited by laws to be engaged in positions above the scope of their duties. Fifth, the arbitrator selection and appointment criteria should be documented, and the arbitrator should have the ability to resolve the disputes independently and fairly and achieve concord from both parties. Sixth, if there is no agreement between the parties, the arbitration language should be Mongolian, and the arbitral tribunal has no power to decide on it. Seventh, despite the agreement for a documentary hearing between the parties, there should be provided opportunities for an oral hearing if either of the parties requires it. Eighth, if the parties do not understand the language of the arbitration, the parties can directly ask the translation service. They should also keep secrets in the process of arbitration. Ninth, the cancellation of arbitral award is allowed by the application of the parties, not by the authority of the court. Except for the nine differences above, the Mongolian arbitration system is similar to that of the Korean Arbitration Law. This paper serves to contribute to the furtherance in trade relationship between Mongolia and Korea after the rapid and efficient resolution of disputes.

• The Korean Society of Law and Medicine
• /
• v.10 no.1
• /
• pp.263-305
• /
• 2009

Is it lawful to withhold or withdraw life-sustaining treatment applied to a patient in a terminal condition or permanent unconscious condition? In Korea, there are no such laws or regulations which control affairs related to the withholding or withdrawal life-support treatment and active euthanasia as the Natural Death Act or the Death with Dignity Act in the U. S. A. And in addition there has had no precedent of Supreme Court. Recently Supreme Court has pronounced a historical judgment on a terminal care case. The court allowed the withdrawal of life-sustaining treatment from a patient in a permanent unconscious state. Fundamentally the court judged that the continuation of that medical treatment would infringe dignity and value of a patient as a human being. And the court required some legal grounds to consider such withdrawal or withholding of medical care lawful. The legal grounds are as follow. First, the patient is in a incurable and irreversible condition and already entered a stage of death. Second, the patient executed a directive, in advance, directing the withholding or withdrawal of life-support treatment in a incurable and irreversible condition or in a terminal condition. Otherwise, at least, the patient's will would be presumed through his/her character, view of value, philosophy, religious faith and career etc. I regard if a patient is in a incurable and irreversible condition or in a terminal condition, the medical contract between a patient and a doctor would be terminated because of the actual impossibility of achievement of it's purpose. So I think the discontinuation of life-sustaining care would be legally allowed without depending on the patient's own will.

• Journal of Arbitration Studies
• /
• v.28 no.4
• /
• pp.131-152
• /
• 2018

On October 31, 2013, the Singapore Court of Appeals handed down a landmark decision in the case of PT First Media TBK v Astro Nusantara International and Others [2013] SGCA 57. The case arose out of an arbitration in Singapore involving the Malaysian conglomerate Astro and the Indonesian conglomerate Lippo, which culminated in a USD 250 million award in favor of Astro. The final award was given to three Astro subsidiaries who were not parties to the arbitration agreement, but who were joined in the arbitration pursuant to an application by Astro. Lippo then applied to the Singapore High Court to set aside the enforcement orders. The Court of Appeals, however, reversed the High Court's decision, and found that Astro was only entitled to enforce the awards. Also, the Court of Appeals undertook a detailed analysis of the use of active and passive remedies to defeat an arbitral award at the seat and the place of enforcement, respectively. It also touches on the innovation of forced joinders of third parties in arbitrations, which have garnered significant interest in the arbitration community. This decision is therefore expected to have a significant impact on the practice of international arbitration, including in relation to how awards can be enforced or defeated, as the case may be.

• Journal of Arbitration Studies
• /
• v.32 no.2
• /
• pp.3-30
• /
• 2022

On 27 October the Supreme Court of UK handed down its much anticipated decision in Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) [2021] UKSC 48. The issues for the Supreme Court to decide were as follows: (1) which law governed the validity of the arbitration agreement; (2) if English law applied, whether, as a matter of English law, there was any real prospect that a court might find that KFG became a party to the arbitration agreement, and (3) whether, procedurally, the Court of Appeal was correct in giving summary judgment refusing recognition and enforcement the award, or whether there should have been a full rehearing of whether there was a valid and binding arbitration agreement for the purposes of the New York Convention and the AA 1996 (the 'procedural' issue) The decision in Kabab-Ji provides further reassuring clarity on how the governing law of the arbitration agreement is to be determined under English law where the governing law is not expressly stated in the arbitration agreement itself. The Supreme Court's reasoning is consistent with its earlier decision on the same issue, albeit in the context of enforcement pursuant to the New York Convention, rather than considering the arbitration agreement before an award is rendered. This paper presents some implications of Kabab-Ji case. Also, it seeks to provide a meaningful discussion and theories on the arbitration system in Korea.

• Journal of Arbitration Studies
• /
• v.31 no.4
• /
• pp.51-70
• /
• 2021

Chinese courts seem to be indifferent or ignorant of truncated arbitration. In other words, the Chinese court canceled the arbitration award made by truncated arbitration except for the Pingdingsan Case among the four arbitration cases related to the domestic arbitration award reviewed in this paper on the ground that it violated the composition of the arbitral tribunal or the arbitration procedure. A Chinese court has canceled the arbitration award by judging only based on the composition of the arbitral tribunal and the legal process of the violation of the arbitration procedure not by determining whether the domestic arbitration award made by the truncated arbitration meets the conditions for the application of truncated arbitration as stipulated in the Arbitration Rules. Moreover, it seems that the Chinese court made a serious error in the application of the relevant regulations in the Pingdingsan Case, which ruled that the truncated arbitration did not violate the legal process. In this case, the Chinese court admitted truncated arbitration under logic process that it was not necessary to wait until the final hearing to apply the truncated arbitraion because one arbitrator was absent before the final hearing, but the truncated arbitrator had already formed his/her opinion before the absence. However, in the case of Marshall Investment Corporation, a case related to foreign arbitration, the Chinese court rejected the approval and execution of the truncated arbitration award by strictly applying the laws and timing of the truncated arbitration. Since only one case has been identified in the main text, it is difficult to make a definitive judgment, but considering these cases, it seems to be that the Chinese courts apply different standards to domestic and foreign arbitration awards to determine the legality of truncated arbitration.

• The Korean Journal of Air & Space Law and Policy
• /
• v.31 no.2
• /
• pp.73-98
• /
• 2016

This is a case review of the Korean Supreme Court about international jurisdiction over a foreign-related case. This case is a guideline to other following cases how Korean court has international jurisdiction over the foreign elements cases. This case was an air crash accident in Busan, Korea. And the applicant was a chinese who was parents of flight attendant. The defendant was Air China. The applicant suid the defendant in Korea court, requesting for compensation for damages based on the contract of employment between died employee and the defendant and tort. The trial court rejected jurisdiction. But Supreme court granted jurisdiction on Korean court. The court determined the jurisdiction by the Korean Private International Law Act(KPILA). The KPILA has a concept of 'substantial connection', it is a main legal analysis to determine the jurisdiction. In the act, Article 2 Paragraph 1 says "In case a party or a case in dispute is substantively related to the Republic of Korea, a court shall have the international jurisdiction. In this case, the court shall obey reasonable principles, compatible to the ideology of the allocation of international jurisdiction, in judging the existence of the substantive relations." And Article 2 Paragraph 2 declares "A court shall judge whether or not it has the international jurisdiction in the light of jurisdictional provisions of domestic laws and shall take a full consideration of the unique nature of international jurisdiction in the light of the purport of the provision of paragraph (1)." In this case review find concepts, theories and cases out to clarify the meaning about Article 2 of the KPILA. Also it quoted from the concept of "the base rule" in Rome I (Regulation (EC) 593/2008 on the law applicable to contractual obligations) to apply the contract of employment between flight attendant and Air carrier.

• Sijohaknonchong
• /
• v.25
• /
• pp.145-174
• /
• 2006

The purpose of this study is to research the correlation of Sijo with Akjang. In Joseon Dynasty, the contact of folk music and court music was brisk. Although they had some political premises, many Jeongjaes presented in the royal court parties accepted Gagok, one of the representative folk song genres. It was an eye-opening matter. The song words sung by Gagok music accompaniment were the lyrics of Sijo. We can give Sijo that was used in diverse royal court parties as an typical example about introduction of folk music to the court music. A lot of Goryeo Dynasty's Jeongjaes were introduced to Joseon Dynasty nearly as they are. Naturally so most Sokak-gasas were. Bukjeon was sung to Jinjak tune which Jeong-gwajeong was sung. Bukjeon in the music book Akhak-Guebum is a long song, but instead Bukjeons in the music book Geumhapjabo and Yang'geum-sinbo are short. It suggests that the poetic form of Sijo was introduced to the Lyric of royal court music from a point of time in the early Joseon Dynasty. Especially, Bukjeon had been continued to the late Joseon Dynasty after exchanging to the lyric form of Sijo. Bukjeon had been used In the royal court to the first half of Joseon Dynasty It became established in the repertory of Gagok after spreading to people out of court. Turnover from the long Bukjeon to the short was a result that the folk music influenced royal court music. Bukjeon. song words praying King's longevity. was used in the diverse situations such as a small royal parties, royal archery, and King's outing. It can be a clue that the Korean song words continued to late Joseon Dynasty were used for the lyric of royal court music. In the correlation of the poetic form of Sijo and Akjang, we can find out some characteristics different from our common sense to distinguish royal court music from folk music.

• (The) Research of the performance art and culture
• /
• no.43
• /
• pp.357-380
• /
• 2021

Akjang yoram 『樂章要覽』 is a book that summarizes only the important contents from the Akjang 樂章. Akjang 樂章 is arranged in the first half, and score 樂譜 is arranged in the second half. It seems that Akjang yoram 『樂章要覽』 passed through a total of four stages through the time when the handwriting and the lyrics were written. The presence of various handwriting and traces of modifications means that it has been passed through by several people, so it is not unrelated to the fact that several traces remain on the back of the cover of Akjang yoram 『樂章要覽』. The first part of the Akjang 樂章 is a method of presenting the name and lyrics of the accompanying music based on the ritual procedure, and in particular, the lyrics are written in Chinese characters and Hangeul sounds to improve readability. The score in the second half complies with the ritual procedures, but boldly omits overlapping melodies, and is composed based on the music, and various symbols are used to capture the expression of court music. This structure is a reflection of the direction we practiced to harmonize with the music after prior ritual procedures and diction. This was a device to increase the efficiency of music education and music practice for the court musician. The characteristics of the musical pieces are that they consist of essential musical pieces that must be mastered as musicians. In addition, the name Kim Hyung-sik 金亨植 is noted on the back cover of Akjang yoram 『樂章要覽』, and he was a court musician who was active in the age of King Sunjo 純祖. In other words, the musical pieces included in Akjang yoram 『樂章要覽』 are the core repertoire played by court musicians like Kim Hyung-sik 金亨植. Akjang yoram 『樂章要覽』 is a 'music practice booklet' containing the daily life of court musicians. Akjang yoram 『樂章要覽』 is a booklet designed for the purpose of teaching the court musicians to sing while correctly pronouncing the lyrics in major ceremonies. It is even more noteworthy in that Kim Hyung-sik 金亨植 was an owner. In addition to the fact that Kim Hyung-sik's name remains, and in the practicality of being used by various court musicians reflecting and modifying the changes of the times, it is meaningful in that it contains the path of court musicians who spent a lot of time and time to transmit court music.

• The Korean Society of Law and Medicine
• /
• v.9 no.2
• /
• pp.311-338
• /
• 2008

This paper aims to introduce an overview of the regime of expert witness in the medical malpractice litigation, and to provide a plan of how to make it improved. In regard with medical expert witness, several problems, such as time-consuming procedure, non-neural and unclear opinion without reasons provided, have been pointed out for several years. Lack of skill of the court and plaintiff/defender to question the expert is one of many cause to lead to the above problems. What is questioned to the expert? Because expert witness is used in determining probability of negligence, questions to the expert should be selected on the grounds of whether or not to obtain opinions or facts sufficient to let the judge infer negligence in view of the theory of proof burden established by the Supreme Court. In addition, to avoid non-neutral and unclear opinion, it is necessary to question the expert clearly, specifically and scientifically.

• Journal of Acupuncture Research
• /
• v.29 no.4
• /
• pp.71-79
• /
• 2012

Objectives : The purpose of this study is to set the explanatory duty on traditional Korean medical(TKM) treatment by analyzing the judicial precedents. Methods : The study was performed by analyzing nine cases of lawsuits related to Korean medicine doctor and explanatory duty among the medical dispute cases in Korea from 1968 through 2012. Results : Nine closed claims occurred regarding the violation of explanatory duties in the field of TKM practice. Two claims were decided by supreme court, three were decided by high court, and four were decided by district court. The causes of lawsuits were categorized as follows : bee venom pharmacopuncture, herb treatment, and an explanation for safety. Conclusions : To perform an explanatory duty has important legal implications for the protection of patients' rights and Korean Medicine doctors' autonomy on TKM treatment.