• 제목/요약/키워드: judicial interpretation

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중재가능성에 대한 미국연방법원의 해석 (U.S. Court's Interpretation for Arbitrability)

  • 한나희;하충룡
    • 한국중재학회지:중재연구
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    • 제28권4호
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    • pp.111-129
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    • 2018
  • The foundation of arbitration is the arbitration agreement between parties. If no agreement to arbitrate exists, the parties should not send to arbitrate their disputes. In the United States, there are no provisions as to arbitrability under the Federal Arbitration Act. Before a court can enforce arbitration, it must first determine arbitrability. The general presumption is that the issue of arbitrability should be resolved by the courts. The question of whether parties have submitted a particular dispute to arbitration raises a question of arbitrability which is an issue for judicial determination unless the parties clearly and unmistakably have provided otherwise. Determining if the parties agreed to arbitrate a dispute involves inquiries into whether there is a valid agreement to arbitrate the claims, and the dispute falls within the scope of the arbitration agreement. Therefore, the purpose of this article is to review how to settle the issue of arbitrability in the U.S. federal courts.

서비스 품질과 신뢰가 고객만족에 미치는 영향 -법무사의 법률서비스를 중심으로- (Influence of Service Quality and Trust on Customer Satisfaction in Judicial Agents's Service)

  • 엄희열;이성호;김제숭
    • 품질경영학회지
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    • 제40권4호
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    • pp.513-530
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    • 2012
  • Purpose: The requirement for legal services is going up by modern people living in the era of complexity and variety who want to resolve legal conflicts between individuals and improve their personal rights. Methods: In this study, we used both literature and empirical researches to achieve our goals. In literature research, concept of service quality, method of measuring service quality, and dimension of service quality were explored, relationship among service quality, customer satisfaction, and customer loyalty and hypothesis was made based on the above, and tested. To test the conceptual framework, structural equation modeling (SEM) has been used to analyze the data collected from 252 customers of Judicial Agents's Service. Results: This result is not consistent with that of advanced study; it was found that service has significant influence on customer trust, and the trust also has significant influence on customer satisfaction and loyalty. Conclusion: This study has limitations in terms of restricted service sectors and measuring methods. For this reason, the followings are needed to be considered for interpretation and generalization of the study results. We believe that further studies are needed to investigate other service areas as well as legal service at the same time, and study target which is limited to Gangwon Province needs to be expanded for more accurate investigation. In addition, in-depth follow-up study should be proceeded considering variables such as customer value, conversion cost, and image of service providers.

Efficacy of pushover analysis methodologies: A critical evaluation

  • Dutta, Sekhar Chandra;Chakroborty, Suvonkar;Raychaudhuri, Anusrita
    • Structural Engineering and Mechanics
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    • 제31권3호
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    • pp.265-276
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    • 2009
  • Various Pushover analysis methodologies have evolved as an easy as well as designers-friendly alternative of nonlinear dynamic analysis for estimation of the inelastic demands of structures under seismic loading for performance based design. In fact, the established nonlinear dynamic analysis to assess the same, demands considerable analytical and computational background and rigor as well as intuitive insight into inelastic behavior for judging suitability of the results and its interpretation and hence may not be used in design office for frequent practice. In this context, the simple and viable alternative of Pushover analysis methodologies can be accepted if its efficacy is thoroughly judged over all possible varieties of the problems. Though this burning issue has invited some research efforts in this direction, still a complete picture evolving very clear guidelines for use of these alternate methodologies require much more detailed studies, providing idea about how the accuracy is influenced due to various combinations of basic parameters regulating inelastic dynamic response of the structures. The limited study presented in the paper aims to achieve this end to the extent possible. The study intends to identify the range of applicability of the technique and compares the efficacy of various alternative Pushover analysis schemes to general class of problems. Thus, the paper may prove useful in judicial use of Pushover analysis methodologies for performance based design with reasonable accuracy and relative ease.

전자상거래에서의 지적재산권에 관한 문제점과 개선방안 (A Consideration for Intellectual Property Rights under Digital Environments)

  • 권상로
    • 통상정보연구
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    • 제6권1호
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    • pp.249-265
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    • 2004
  • In the current digital age, most of the countries in the world recognize the electronic business to be a very prospective area in the future and plan to activate for the preoccupation of the business. As a result, this led a rapid increase of the electronic business volume. Electronic business takes place in the cyber space, using internet. However, the intellectual property rights have a high degree of possibility of being infringed as the digitalized intellectual property is easy to receive, copy and transmit in the cyber space. The language structure on the web, represented by HTML, makes easier to copy the intellectual property. And, as the internet has no national boundary, the infringement of the intellectual property rights is easier regardless of country, which could lead to the commercial disputes between the concerned countries. There are in fact many legal disputes nowadays on the infringement of the intellectual property rights in such field as computer programming, infringement of the copyright, business model patent and infringement of the trademark right on the registered name of the domain. It is, therefore, time now to prepare a new theory or legal system to protect the intellectual property rights on copyright, patent and trademark right so as to comply with the digital environment together with such a splendid growth of "electronic business." USA and Germany are nowadays making a significant movement on the legislation of the electronic business, and this study will focus on the legislative contents, judicial precedents and interpretation of law in the above countries.

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판례분석을 통한 한방의료행위개념의 법적 근거 고찰 (A Study on the Legal Aspect of the Concept for Medical Practice in Korean Medicine through Cases Analysis)

  • 이미선;권영규
    • 한국한의학연구원논문집
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    • 제15권3호
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    • pp.19-28
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    • 2009
  • Objectives : The lawsuits associated with medical practice in Korean medicine are increasing gradually. However, the clear definition for medical practice in Korean medicine has not been existed in Korean law. Only we may understand the concept regulated by judicial precedents of the court of justice or the authoritative interpretation by the government. Methods : For study, a database was established for medical lawsuits involving Korean medicine(1968~2009, n=130). Results : According to court rulings, the medical practice in Korean medicine is an act to diagnose a person's illness, prescribe and treat to cure based on traditional Korean medicine, to be understood as a medical care, to have some factor to create or increase danger for the preservation of health or hygiene, and to be practiced by medical specialists based on their professional knowledge. Conclusions : But, such definition is not proper and exceedingly vague. Besides medical circumstances Koreans Medicine are changing, and new precedent to the definition of the practice of medicine is establishing. Therefore the meaning and scope of the medical practice in Korean medicine should be modified and amended, reflecting these conditions.

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중재의 준거법 선택과 당사자 자치의 제한 - 국제스포츠중재를 중심으로 - (The Choice of Applicable Law and the Limitations of Party Autonomy - Focusing on International Sports Arbitration -)

  • 유소미
    • 한국중재학회지:중재연구
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    • 제31권2호
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    • pp.23-46
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    • 2021
  • Sports disputes have specific characteristics compared to disputes that arise in the field of commerce. One particularity is the judicial system in which the CAS plays a key role as the International Supreme Court for sports-related matters. The CAS Code applies whenever the parties agree to submit a sports-related dispute to the CAS(Art. R27). Once the parties to the arbitration agreement have decided that the CAS Code should govern their proceedings. The parties' autonomy is, however, limited to the provisions of the CAS Code that provide for such a corresponding autonomy. The application of the mandatory rules contained in the CAS Code cannot be excluded. In CAS appeals arbitration proceedings, the Panel shall decide the dispute according to the applicable sports regulations and, subsidiarily, to the rules of law chosen by the parties(Art. R58). In international sports disputes, the uniform application and interpretation of the relevant regulations are essential. Therefore, Art. R58 should be applied as a mandatory rule without any changes. Regulations of the sports organizations are to be qualified as valid rules of law. CAS panels may also apply the so-called lex sportiva to the merits before considering statutory provisions of national jurisdictions. In this way, the specificities in (international) sports disputes can be taken into account without the need to further examine the application of national legal standards.

인간다운 생활을 할 권리와 건강권 (The Right to a Humane Livelihood and the Right to Health on Korean Constitution)

  • 박지용
    • 의료법학
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    • 제20권1호
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    • pp.3-24
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    • 2019
  • 이 글은 현행 헌법의 규정과 헌법재판소 결정 그리고 개헌안의 건강권 신설 규정 등을 비판적으로 검토함으로써 건강권의 헌법적 의미를 특히 '인간다운 생활을 할 권리'와의 관련성 속에서 고찰하는 것을 목적으로 한다. 건강은 개인의 일반적인 행위 및 가치실현의 전제가 되는 기본적인 자유로서의 성격을 갖게 되었으며, 국가는 개인의 건강을 보호하여 가장 기본적인 '인간다움'의 조건을 보장하고 자유 실현의 기초를 마련해야 한다. 헌법 제36조 제3항에서 규정하는 보건 보호라는 국가 과제는 인간다운 생활을 할 권리에 관한 헌법 제34조의 구체적 내용으로 이해되어야 한다. 그리고 인간다운 생활을 할 권리를 '사회보장권'으로 이해할 경우, 헌법상 건강권은 '건강에 관한 사회보장권' 내지 '건강보장권'을 의미한다고 할 수 있다. 한편, 헌법재판소는 인간다운 생활을 할 권리에 대한 사법심사에서 소위 '최소한의 물질적인 생활 기준'을 채택함으로써 동 권리의 내용을 협소하게 파악하고 있다. 그러나 인간다운 생활을 할 권리는 '인간의 존엄성에 맞는 건강하고 문화적인 생활을 향유할 수 있는 권리'를 의미하고, 다만 그 보호의 수준이 어느 지점인지에 대한 판단이 일차적으로 입법재량에 맡겨져 있을 뿐이다. 그렇다면 인간다운 생활을 할 권리에 관한 사법심사는 입법재량의 통제 문제로 귀결된다.

ICSID 중재의 임시적 처분 구속력과 미준수 효과에 관한 연구 (A Study on the Binding Power of Interim Measures and the Effect of Interim Measure Non-Compliance in ICSID Arbitration)

  • 하현수
    • 한국중재학회지:중재연구
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    • 제30권2호
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    • pp.3-21
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    • 2020
  • This study focuses on the binding power of the interim measures of the arbitral tribunal in ICSID arbitration and the effects of non-compliance. Upon consideration of the intentions of those who made these rules, given the interpretation of the provisions of Article 47 of the ICSID Convention and Article 39 of the ICSID Arbitration Rules, it was found reasonable to consider that the interim measures made by the arbitral tribunal in ICSID arbitration were not binding. However, in actual ICSID arbitration, most arbitral tribunals approve the binding power of the interim measures based on the purposes and the characteristics of the interim measures. As such, there is a certain distance between the legislative intention for interim measures in ICSID arbitration and the judicial practice, but considering the demand for maintaining the integrity of the arbitration procedure, it is reasonable to consider that the interim measures are binding. In addition, the fact that the interim measures have binding power can increase the possibility that the party will comply with the interim measures. Thus, the binding power of interim measures not only encourages voluntary compliance to the interim measures of the party, but can also cause negative consequences for the party if it is not met. In other words, the arbitral tribunal will be able to form negative inferences against the party who does not comply with it in a procedural side, and in the practical side, the party who does not comply with the interim measures will be compensated for the additional damages for non-compliance.

Coming To America: The Use of 28 U.S.C. § 1782

  • Robertson, Ann Ryan;Friedman, Scott L.
    • 한국중재학회지:중재연구
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    • 제25권3호
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    • pp.59-90
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    • 2015
  • Since 1855, the federal courts of the United States have been empowered to assist in the gathering of evidence for use before foreign tribunals. Today, the source of that authority is 28 U.S.C. ${\S}1782$ which permits the courts to order a person "to give [ ] testimony... or to produce a document ... for use in a proceeding in a foreign or international tribunal${\cdots}$ ." It was generally assumed, until the United States Supreme Court's decision of Intel Corp. v. Advanced Micro Devices, Inc. in 2004, that arbitration tribunals were not "foreign tribunals" for purposes of 28 U.S.C. ${\S}1782$. While the issue in Intel did not involve an arbitration tribunal, a statement by the Supreme Court in dicta has called into question the exact parameters of the words "foreign tribunal," resulting in a split of opinion among the federal courts of the United States. This article explores the legislative history of 28 U.S.C. ${\S}1782$, examines the United States Supreme Court decision in Intel, and discusses the split among the courts of the United States regarding the interpretation of "foreign tribunal." The article further surveys emerging issues: is an arbitration tribunal in a case involving foreign parties and seated in the United States a "foreign tribunal"; does agreeing to the use of the IBA Rules on the Taking of Evidence in International Arbitration circumscribe the use of 28 U.S.C. ${\S}1782$; can a party be ordered to produce documents located outside the United States; and is there a role for judicial estoppel in determining whether an application pursuant to 28 U.S.C. ${\S}1782$ should be granted?

선적지매매계약에서 체선료의 부담책임에 관한 연구 -편입조항에 관한 영국관습법을 중심으로- (A Study on the Demurrage Liabilities in the International Sale Contracts on Shipment Terms)

  • 최명국
    • 무역상무연구
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    • 제62권
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    • pp.113-132
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    • 2014
  • Judicial decisions make it clear that in all CIF, CFR and FOB contracts, incorporation of charter party into sale contracts is the only effective way for recovery of demurrage in the context of sale contracts. The case law would appear to clarify a number of important issues: The words of incorporation in the sale contract play a vital role in determining the extent of the influence of the charter party principles over the sale contract. Hence, unless it is expressly provided otherwise, the courts tend to apply the charter party principles to the incorporated charter party provisions to the extent that they make sense in the context of sale contract, and that they do not undermine the underlying foundations of international trade law. In this respect the courts also take into account the factual background of the case with a view to objectively ascertaining the intention of the parties. The law is, however, less clear on the effects of the incorporated charter party provisions in sale contracts. There is still no straightforward answer to the question of to what extent the charter party law is applied to the incorporated charter party provisions in the context of sale contracts. The case law on this matter merely provides piecemeal solutions, and it is not possible to extract a general rule which will help interpretation of those charter party provisions which have not yet been subject to litigation or arbitration. Therefore, it should be noted that the parties would prepare Incorporation Clause in their sale contracts in reliance of the rules to achieve the desired results.

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