• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.12
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• pp.555-586
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• 1999

United States has extended the extraterritorial application of U.S. Antitrust Law in 1990s. First, The U.S. Federal Supreme Court declared in Hartford Fire Insurance Co. v. California that the extraterritorial application of U.S. Antitrust Law is according to Effect Doctrine. Therefore, U.S. Antirust Division and FTC will continue to base their assertions of juridiction on the test of direct, substantial and foreseeable effects on U.S. interests. Second, U.S. Antitrust Law apply to foreign conduct that such conduct has direct, substantial and reasonably foreseeable effect on U.S. domestic or import commerce and export commerce. Third, United States has extended the extraterritorial application of U.S. Antitrust Law on international licensing contract or international merger. Forth, United States impose criminal responsbility of U.S. Antitrust Law on the foreign anticompetitive conduct. Therefore, our government and industries must consider the corresponding stratigies against the extension of the extraterritorial application of U.S. Antitrust Law.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.25
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• pp.99-119
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• 2005

Recently, the export claims related to the compliance of the commercial invoice are increasing. This paper aims to review the basic requirements of the invoice, and two theories on the document compliance, i.e., the strict compliance and the substantial compliance, and to analyse the substantial compliance of the invoice through some recent cases under the UCP 500, ICC's opinions and the International Standard Banking Practice (ISBP). As regards the compliance of the invoice, a majority of the cases has held that it must comply strictly with the credit terms ("strict compliance rule"). However, a minority of courts and credit industry standards such as the UCP and ISBP published by ICC take a different approach, infusing the credit law notions such as equity, "substantial compliance rule", etc. The extent of the substantial compliance of the invoice is particularly explained in the above-mentioned invoice paragraphs of the ISBP and supported by a large number of ICC's official opinions. Especially, the parties and descriptions in the invoice must correspond with those in the credit, being not inconsistent with the other documents. Other issues related to invoices such as a tolerance of the quantity, the amount, and the number of originals or copies, etc. must comply with the credit terms substantially.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.39
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• pp.3-26
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• 2008

CISG provides the Convention's default provisions on anticipatory breach. Article 71 permits the aggrieved party to suspend the performance of his obligations if it becomes apparent that the other party will not perform a substantial part of his obligations after the conclusion of the contract. The aggrieved party must give notice of the suspension to the other party and if he provides adequate assurance of his performance, the party must continue with performance. Article 72 authorizes the aggrieved party to avoid the contract to the date of performance when it is clear that the other party will commit a fundamental breach. The aggrieved party is also required to give the other party notice of his intent to avoid the contract if time allows. The requirements for avoidance under Article 72 are more stringent than those for suspension under Article 71. Article 72 requires reasonable prior notice only if time allows, while article 71 requires immediate notice with no exceptions.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.49
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• pp.139-164
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• 2011

Traditionally courts have been adopted over the years two standards of dealing with compliance of documents such as strict compliance and substantial compliance and the substantial compliance, which was somewhat less demanding than the strict compliance. However the new guidelines of ICC's international standard banking practice for the examination of documents under documentary credits set up how the UCP is to be applied in practice. The payment obligations of an issuing bank to a beneficiary are independence of the performance or the nonperformance of any contract underlying the letter of credit. However, strictly applying the principle of independence and abstraction could produce unfair results by operating unjustly enrich an unscrupulous beneficiary in case of fraud. Accordingly, when a beneficiary presents complying documents, the issuing bank is bound to honour the presentation unless the fraud rule applies on the facts of the case such as forged or material fraud. If it does, the issuing bank(issuer) needs not pay despite the complying presentation of documents by the beneficiary under the Uniform Commercial Code Article 5-109 and case law in America. However the fraud rule was not addressed in UCP 600. In conclusion, view in terms of legal principle and the court cases is variable and difficult to honour or dishonour the presentation in case of application of the independence principle and fraud rule such as the problems on burden of proof timely, possibility of granting injunction in order to protect against victim for bona fide applicant.

• The Korean Society of Law and Medicine
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• v.20 no.1
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• pp.25-43
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• 2019

This study analyzed the problem of the time difference of medicine price cut in Korea according to the administrative and judicial process and sought to present the amendment in the related law to achieve substantial fairness. We considered unfairness of medicine price cut caused by the administrative and judicial process in three situations, the approval-patent linkage system, realistic differences in the practice of administration and suspension of price cut execution. Based on it, we reasoned out the solution to get substantial fairness in the administrative and judicial process of medicine price cut in Korea. Although each step of the administrative and judicial process is lawful and reasonable, the time difference of medicine price cut according to the administrative and judicial process can result in damages or windfall to both of pharmaceutical company and National Health Insurance Service. In the present legal system of Korea, it is unable to be correct. Thus, we present the amendment to correct the damages and windfall when it happens.

• The Korean Society of Law and Medicine
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• v.7 no.2
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• pp.75-96
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• 2006

Having gone through socioeconomic changes from an agricultural to a post-industrial society, mental health system accordingly has been changed. In Korea where the socioeconomic change has been so rapid, the mental health system and law have been behind the socioeconomic system. Post-industrial society needs more humanized and advanced mental health system, however, Korean mental health law reflects ideology of Korean society in industrial age. This paper attempts to assess the significance Korea's Mental Health Law against the backdrop of socioeconomic changes. A substantial part of the report is devoted to identifying discrepancies between Korea's Mental Health Law and the perspectives of post-industrial ideology and areas for improvement. Improvement in mental health law should take place in line with the changes occurring in socioeconomic environments, the social concept of family, and the public awareness of human rights. Korea's mental health law should be changed in a way to improve hospitalization procedure for people with mental illness, promote the opening of mental health facilities and improve the quality of the lives of the mentally ill. Further changes are deemed necessary in the public and media view of mental illness. Also, the national budget will have to be increased with a view to raise the social rights of those with mental illness to receive quality rehabilitation services.

• East Asian Journal of Business Economics (EAJBE)
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• v.11 no.4
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• pp.41-50
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• 2023

Purpose - This study aims to examine the role of contract law in mergers and acquisitions (M&A) and to examine whether or not contract law is necessary in M&A. The study also discusses how contract law can be utilized in M&A, as well as some of the problems that arise from the use of contracts in this area. Research design, data, and methodology - To minimize bias and errors, this study used only peer-reviewed articles and book excluding internet news articles, conference papers, and dissertations. For a well-organized screen and selection process, the author conducted the extraction procedure thoroughly to eliminate some duplicated resources. Result: This study indicates that complex deals carry a high risk but also have the potential to yield substantial revenue for stakeholders. Thus, contract law is essential to the success of M&A because it helps to define the (1) terms of the transaction, (2) reduces risk, (3) offers legal safeguards, and ensures that the (4) agreement is enforced. Conclusion - This study concludes that an understanding of contract law is essential to the profitable merging of two businesses. The application of contract law provides a mechanism for enforcing the agreement, which can increase the likelihood that the stipulations of the M&A will be satisfied.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.66
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• pp.47-73
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• 2015

This study primarily concerns the fundamental breach of contract by a seller and a buyer's two remedies that are entitled to under the CISG. Regarding the breach of contract, the CISG simply provides a list of each party's obligations and regulates that both parties should fulfill the obligations under the contract as well as the Convention. When the CISG specifies the remedies for both parties, it requires to divide the fundamental breach of contract from breach of contract. By doing so, it provides different remedies to both parties depending on whether it is the fundamental breach of contract or not. From the point of buyer's view, the buyer has two remedies when there is the fundamental breach of contract by the seller; they are the right to declare the avoidance of contract and to require the delivery of substitute goods. The fundamental breach of contract is a pre-requisite condition to be fulfilled in order to exercise these two remedies. Although the CISG provides the definition of fundamental breach of contract, its meaning is not clear enough, so it is interpreted and applied case by case. Therefore, this paper will analyze recent cases focusing on the most debated issues regarding the interpretation of fundamental breach of contract; first, who determines the substantial deprivation and when is the time for determination, second, when is the time for unpredictability of substantial deprivation, and last, who has a burden of proof.

• Journal of Korea Society of Digital Industry and Information Management
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• v.5 no.3
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• pp.185-199
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• 2009

This paper analyzed articles of u-City Construction Law, which has been enacted on 29th of September last year, and evaluated their appropriateness and other laws associated with u-city services for better provision of u-cities and u-city services. The enacted law established the concept of u-city in Korea and provided relating industries with construction procedures, technology developments, and standards. These efforts have substantial implications as the first stepping stone, but also raised several problems. Hence, this paper suggested that the u-City Construction Law should be amended as follows. First, The minimum size of u-cities, that is required by the law, should be decreased. Second, various kinds of incentives should be provided to the u-city project companies. Third, new organizations such as u-City commission and National or Regional Control and Management Center will be necessary. Fourth, technology standards and inter-operability among cities should be provided in the areas of the control and management centers. And Finally, more measures of and focuses on project financing issues should be made.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.19
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• pp.67-93
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• 2003

The CISG approach was intended to make the remedial system clear, but produced ambiguity, and complexity. The CISG does not differentiate between main, auxiliary and participatory obligations. There is no distinction between breaches of main or breaches of auxiliary obligations, rather, a distinction is made between fundamental and other breaches of contract. Articles 25 gives the definition of fundamental breach of contract. This concept is the essential of avoidance and remedial system in the CISG. This concept, however, is ambiguous. The fact that the fundamentality of a breach of contract in many cases is the condition for an avoidance of contract, is expression of the trend of the CISG to preserve contracts, which I consider as essential in international trade. The elements which define a substantial detriment are extremely complex. It will become obvious that the relevant detriment is not a static element, but in many instances occurs only when the breach of contract continues. It should be added that it is the circumstances of each individual case which are relevant. It is to be stressed that a fundamental breach of contract must constitute also a non-fulfillment of a contractual obligation.