• Journal of Arbitration Studies
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• v.12 no.2
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• pp.153-184
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• 2003

‘Schiedsgutachten’ is more of a law phenomenon that appears frequently in privity of contract rather than a concept that is .generally established in the positive law. There is no definition of this in the positive law which makes it difficult to put a finger on the concept but when the concerned party of the conflict puts the establishment of a fact that is a premise to the legal relationship or the right about the legal right's content or the supplementation of the legal relationship to a third party and makes an agreement to follow the third party's judgement, the process is called the contract of schiedsgutachten. At this point, the judgement of the third party is called the schiedsgutachten. This thesis strives to search for an activation of the schiedsgutachten system in Korea by analyzing and researching the systems in various European countries including Germany where the above mentioned schiedsgutachten system is relatively well-developed. First of all, the three types of schiedsgutachten in the German law will be looked into. Based on this, the theories and judicial precedents of Swiss law, French law, Italian law, and British law will be looked into as well. By doing this, similarities and distinction standards between the various countries' legal systems will be further analyzed. Along with this, the legal qualities and the binding power of the schiedsgutachten will be searched out. In Korea, the term schiedsgutachten itself is not customary as the system itself is not actively being carried out. However, in car damage compensation lawsuits which occupy a big percentage, if the schiedsgutachten system were to be used, the problem would be easily solved without progressing to lawsuits. Korea should actively seek out this system with the various models of different countries including Germany which has been introduced in this thesis as a model.

• Journal of Korea Port Economic Association
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• v.30 no.4
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• pp.111-130
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• 2014

The article 742(2) of the Korean Commercial Code allowed the third party to invoke a direct action against the insurer under a liability insurance. Meanwhile, the owners of the vessel enter into the P&I Insurance Contract with the P&I Club to indemnify all kinds of liability or expenses involved in the operation of its vessel. However, the Rule Book under the P&I Insurance mostly included the Pay to be Paid Clause which precludes the third party's direct action. Recently, the Seoul Central District Court passed a judgement on the validity of the Pay to be Paid Clause under the Korean law against the third party i.e. the cargo insurer having the right of subrogation. The court held that (1) the third party's right of direct action is not the right to claim insurance money but the right to claim damages against the P&I Club, (2) the insurer under a liability insurance is deemed to assume liability jointly and severally with the insured against the third party, (3) the Article 742(2) of the Korean Commercial Code is considered as a compulsory provision because it was invented to protect the innocent third party, the Paid to be Paid Clause is thus null and void. The purpose of this article is to evaluate the appropriateness of this court's judgments by comparative analysis of Korean and English law, and to suggest the relevant amendments of the Korean Commercial Code in order to prevent further legal disputes. The article criticizes the decision of the Seoul Central District Court, taking the attitude that, since the third party's right is the right to claim insurance money, the Paid to be Paid Clause is valid against the third party.

• Journal of Arbitration Studies
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• v.18 no.3
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• pp.117-138
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• 2008

This study lies on building the International Standardization of China Arbitration System for improving a relationship of mutual trust and the safety trade between China and other worldwide countries, especially, South Korea as their one of the biggest trading partners through the comparative analysis of China and UNCITRAL Arbitration Law. In this analysis, the differences from China and UNCITRAL in arbitration law are like belows ; lack of arbitrator's international mind, the limitation of private property right, prohibition of Ad. hoc arbitration, arbitrator's biased nationalism, localism, and their short specialties. a deficiency of the objectiveness for arbitrator's election, a judgement rejection of claimants by using nonattendance and walkout, impossibility of prior and temporary property custody for execution of arbitration award. etc. For the improvement of the International Standardization of China Arbitration, this paper propose as follows: 1) Extension of private property right, reorganization of tax system, realization of open competition, exclusion of 'Sinocentrism', globalization of arbitration system 2) The abolition of old fashioned bureaucracy with approval for ad.hoc arbitration 3) An education for arbitrator's internationalization, specialty, and to promote legal knowledge 4) A settlement of the third country arbitrators' selection for reflecting interested party's decision by the court in a selection system of arbitration committee. 5) Institutionalization of arbitration judgment that prevent for claimant's avoidance by using a withdrawal and an intentional absent 6) A permission of the right of claimant's court custody directly before the begging of arbitration request for the prevention for destruction of evidence and property concealment 7) Grant of the arbitration tribunal's interim measures of protection for private property preservation to the third party, proof security, prevention from the loss that selling the corruptible goods 8) Improvement of arbitration's efficiency from the exclusion of the obstacles that are forgery, concealed evidence, and arbitrator's bribe taking Lastly, I hope that this study will serve to promote friendly economic relationship between China and South Korea and strive for international equilibrium through the achievement of China Arbitration's International Standardization. I will finish this paper with a firm belief that this will lead to more advanced studies.

• Proceedings of the Korean Society of Computer Information Conference
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• 2016.07a
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• pp.141-143
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• 2016

2016년 5월 19일 대법원은 전원합의체판결에서 부동산 매수자가 본인 명의로 소유권이전등기를 하지 않고 등기를 매도인에게서 직접 명의수탁자로 이전하는 제3자간 명의신탁(중간생략등기형 명의신탁)의 경우 명의수탁자가 신탁부동산을 임의로 처분하여도 형사처벌를 할 수 없다는 판결을 하였다. 본 논문에서는 민법과 형법의 교차영역인 명의신탁에서 민사사건의 형사화를 지양했다는 점에서 긍정적인 평가를 하지만 이에 따른 관련법의 정비를 통한 법개정을 제안한다. 즉, 명의신탁에 관한 법제 간 모순을 극복하기 위해 '부동산 실권리자명의 등기에 관한 법률'의 개정이 요구된다. 또한 부동산소유자가 그 등기명의를 타인에게 신탁하기로 하는 명의신탁약정을 맺고 그 등기명의를 명의수탁자에게 이전하는 소위 2자간 명의신탁의 경우도 비범죄화를 함으로써 법체계의 논리성과 통일성을 확보할 필요가 있다.

• Korean Journal of Culture and Social Issue
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• v.26 no.1
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• pp.25-45
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• 2020

Intentionality judgement in criminal cases is a core area of fact finding that is root of guilty and sentencing judgment on the defendant. However, the third party is not sure the intentionality because it reflects subjective aspect of agent. Thus, mechanism behind intentionality judgment is an important factor to be properly understood by the academia and the criminal justice system. However, previous studies regarding intentionality judgment models have shown inconsistent results. Mental-state models proposed foreseeability(belief) and desire of agent at the time of the offence as key factors in intentionality judgment. These factors consistent with central things on intentionality judgment in criminal law. However, key factors in moral-evaluation models are blameworthiness of agent and badness of outcome reflected on the consequent aspect of act. Recently, deep-self concordance model emerged suggesting important factors on intentionality judgment are not mental states and moral evaluations but individual's deep-self. However, these models are limited in that they do not consider the important features of criminal cases, that the consequence of the case is inevitably negative, and therefore the actor who is a party to legal punishment rarely expresses his or her mental state at the time of the act. Therefore, this study suggests that, based on the existing intentionality judgment studies and the characteristics of the criminal case, the inference about who the agent was originally will play a key role in judging the intentionality in the criminal case. This is the moral-character model. Futhermore, In this regard, this study discussed what the media and criminal justice institutions should keep in mind and the directions for future research.

• Management & Information Systems Review
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• v.30 no.4
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• pp.253-292
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• 2011

This study is significant of groping for the autonomous perspective of a medication system for the establishment of harmonious regional labor-management relationship and investigating a plan to minimize previously labor disputes through both analyzing mediation cases and finding out any core issue from the labor-management relationship, with matters experienced in the mediation field when I had served as a mediator. Specially, this study has also objectives to prevent previously any labor dispute through analyzing and minimizing the issue of the labor dispute by case and to establish harmonious labor-management relationship thereby. Further since it is necessary to understand the organization and roles of the regional labor relations commission in order to understand the concrete matters in respect of the labor dispute mediation, this study shall be to explore in detail the matters relating hereto and to acquire general knowledge of mediation through case analysis. Additionally, there is little studies exploring alternative research for the establishment of reasonable labor-management relationship with core issues referred a mediation to the labor relations commission through both the position heightening of the labor relations commission and the analysis of core issues until now. Thus, this study may provide a theoretical base for raising a technique to enhance negotiation skill through acquiring the previous training or full knowledge on the approaching manner to be taken by the labor and management in the collective bargaining or wage bargaining on the basis of items analyzed by core issue. The heightening perspectives to be acquired through the analysis of 50 or more mediation cases are as follows. First, it deems to be important what position each mediation party takes. Second, the information acquired by an investigator in the preliminary investigation before holding the mediation is very importantly utilized in the mediation. Third, the gumption of mediators in charge of the mediation is very helpful for the resolution of a case. Fourth, it shall be preceding to understand dispute issues. After reviewing fully the investigation report of an investigator, if separate review is required, it is tried to hold a separate meeting and then reduce the number of issues asserted by the labor & management and, if the number of such issues is reduced, the mediation may approach to be concluded. Fifth, it shall be kept in mind that any matter other than the scope of the law be based on not the judgement of mediator but the legal interpretation. Sixth, it is necessary for both labor and management parties to take a positive approach so as to make the healthy labor & management relationship anchored. Seventh, notwithstanding the mediators are part-time and take a service attitude, it shall be encouraged to abstain from slandering or inveighing against the mediators because the mediation is taken against oneself. Eighth, it is necessary to convert the management's recognition about a labor union. Ninth, it is necessary to not raise any issue on the matters, such as time-off system and multiple labor union, etc., which are legally enforced. Tenth, it is confirmed that the regional labor relations commission plays a bridge role of narrowing down the issue difference between the labor and management.