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pISSN : 2092-769X / eISSN : 2733-6948

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2016, Vol., No.16

  • 1.

    On the Systematized Institutions for the Creditor Protection in Private Company under the Authorized Capital System

    刘燕 | 舒玲敏 | 陈思宇 | 2016, (16) | pp.1~22 | number of Cited : 0
    Abstract
    To streamline administration and institute decentralization, the Chinese central government has been conducting a reform of the registered capital system since 2013. The reform is charactered with the pursuit of business freedom, the weakening of the regulation function the registration and the abandon of the idea of the capital credit., which requires a different institutional design of the corporation’s creditors protection. The change of the capital system of the corporation from the paid-in capital system to the subscription capital system makes unsuitable the traditional protection systems for the corporation’s creditors which was designed for the paid-in capital system. Under the traditional paid-in capital system, the protection for the corporation’s creditors depended on the rules centered on the credit guaranteed function of the registered capital which does not exist at all. Under the subscription capital system, the lose of the credit guaranteed function of the capital system requires a comprehensive protection for the corporation’s creditors, which includes the construction of the credit system, the introduction of the investment reminder program and the use of piercing the corporation’s veil.
  • 2.

    Research on the Legal Issues Arising from the jurisdiction Overlaps between WTO and RTAs in Dispute settlement

    钟 英 通 | 2016, (16) | pp.23~41 | number of Cited : 0
    Abstract
    The proliferation of the dispute settlement mechanism in RTAs has posed a great threat to that of WTO, which triggered problems regarding the overlaps of jurisdictions such as forum shopping and parallel proceedings. On the one hand, the panels and the Appellate Body of WTO avoided solving these problems directly. On the other hand, suggestions from scholars were in lack of feasibility. This article suggests that from the perspective of feasibility, with the advantages of WTO dispute settlement mechanism and flexibility of making and amending the contents of RTAs in mind, WTO members may solve the problems of the overlaps of jurisdictions by amending the articles of RTAs properly.
  • 3.

    Challenges and Changes of Trade Circumstance in China - Focusing on the Contents Industries

    HYUNHO KWON | 2016, (16) | pp.43~68 | number of Cited : 1
    Abstract
    This article mainly dealt with the changes of trade circumstance in field of so-called “cultural contents” in accordance with multilateral and bilateral trade system. In case of multilateral trading system, this paper not only concentrated on some trade legal issues in the cultural contents industry, but also examined the application of trade law in process of dispute settlement. After then, in case of bilateral trading system, this article made a close study on the changes of trade circumstance based on Korea-China FTA in field of the Contents industries. As the result of these studies, the changes of trade circumstance in China made lots of the domestic laws revised under the process of dispute settlement in multilateral trading system. And more, in bilateral trading system, Free Trade Agreement became more and more prevalent as an alternative trading legal system for creating a new market accession in the contents industries. Finally, this article showed the limitation of multilateral trading system, and evaluated a relative concreteness and possibilities of market accession in FTA.
  • 4.

    Draft International Convention on Foreign Judicial Sales of Ships and their Recognition

    In-Yu Kim | 2016, (16) | pp.69~93 | number of Cited : 0
    Abstract
    This paper is written for understanding this latest international trends and vitalizing about their discussions by introducing the contents of the Draft International Convention on Foreign Judicial Sales of Ships and their Recognition. Effect of Judicial Sale is Subject to: (a) the Ship being physically within the jurisdiction of the State of Judicial Sale, at the time of the Judicial Sale; and (b) the Judicial Sale having been conducted in accordance with the law of the State of Judicial Sale and the provisions of this Convention, any title to and all rights and interests in the Ship existing prior to its Judicial Sale shall be extinguished and any Mortgage or Charge, except as assumed by the Purchaser, shall cease to attach to the Ship and Clean Title to the Ship shall be acquired by the Purchaser. Subject to the provisions of Article 8, the Court of a State Party shall, on the application of a Purchaser or Subsequent Purchaser, recognize a Judicial Sale conducted in any other state for which a Certificate has been issued in accordance with Article 5, as having the effect: (a) that Clean Title has been acquired by the Purchaser and any title to and all the rights and interests in the Ship existing prior to its Judicial Sale have been extinguished; and (b) that the Ship has been sold free of any Mortgage or Charge, except as assumed by the Purchaser. According to this Draft Convention, the issues will be absolutely improved: problems that whether the burdens in the ship disappeared or not after the judicial sale, problems about notifications to the interested person, problems about transfer of ownership of ship acquired by the judicial sale, and smooth trades of ships. Although this Draft Convention is not the final one, it doesn’t seem to be beyond this category. By introducing the whole text of this Draft Convention, it is expected that the discussion about this field, and about consenting to be bound of this Draft Convention after this Draft Convention being the final one, will be activated.
  • 5.

    Limitation of Ship Owner’s Liability by a time charterer with Delivery of Cargo without Collection of the Bill of Lading at a Bonded Warehouse - Korean Supureme Court Decision dated 9th May 2014, Case No. 2014Ma223 -

    나우경 | Cheong Yeong Seok | 2016, (16) | pp.95~118 | number of Cited : 0
    Abstract
    Limitation of Ship Owner’s Liability is a legal system which has been acknowledged by international conventions or local laws, where the ship owner’s liability occurred in relation to vessel operation can be limited in proportion to the tons of the ship. In the subject case, the bill of lading holder suffered damages by delivery of the cargoes without collection of the bill of lading and raised claims against the carrier. The carrier, who was the time charterer of the vessel, applied for Limitation of Ship Owner’s Liability under Article 769 of the Korean Commercial Law. The issues in this case was whether the damages of the bill of lading holder belonged to the “claims in respect of ... damage to property ... occurring on board or in direct connection with the operation of the ship” in Clause 1, Article 769 of the Korean Commercial Law. In the subject case, the cargo was not damaged on board but was wrongfully delivered at a bonded warehouse and thus there was not a damage to property occurring on board under Clause 1, Article 769 of the Korean Commercial Law. In addition, discharging of the cargoes and the storage thereafter belong to the commercial areas and not to navigation or technical operation of a vessel. Wrongful delivery of a cargo is not a physical damage or loss and thus does not satisfy the requirements to apply Limitation of Ship Owner’s Liability under the Korean Commercial Law. The decision of the Korean Supreme Court is reasonable. Meanwhile, the applicant for the procedure of the Limitation of Ship Owner’s Liability(“Limitation Procedure”) was the time charterer of the vessel. The Korean Supreme Court in the subject case did not consider the issue of whether a time charterer of a vessel can apply for Limitation Procedure. But, this issue seems important as in reality the commercial usages of vessels are being diversified and the word “charter” is used in various situations. In America, by law, only a bare boat charterer can be admitted as a charterer to apply for Limitation Procedure but a time charterer cannot be admitted. In England, by case laws, on the other hand, a time charterer can apply for Limitation Procedure. Considering the purpose of introduction of the system, it is proper only to allow the ship owners or bare boat charterers to limit their liability in total. Therefore, the applicant in the subject case should not be allowed to apply for the limitation procedure.
  • 6.

    The effects of illegal investments on the jurisdiction of investment arbitration

    이재우 | 2016, (16) | pp.119~147 | number of Cited : 1
    Abstract
    Investment treaty requires Contracting States to provide a foreign investor with substantive protections, including national treatment and fair and equitable treatment, in relation to its investment. In addition, investment treaty allows investors of a Contracting State to arbitrate disputes directly with other Contracting State(host state) for violation of the treaty. In order to bring investment disputes to arbitration, the investor must have made a qualifying investment under the investment treaty. Most investment treaties provide a definition of investment which they intend to protect. Also, some treaties limit their application under certain requirements. This paper addresses such prerequisite, which is increasingly at issue in recent investment treaty arbitration – that is, the legality of investment in question. It has become rather common for the respondent states to insist that investors have not complied with the law in making their investment, and accordingly, should be prevented from pursuing their claims. The problem is how to deal with the jurisdictional objection to the competence of the arbitral tribunal where the relevant treaty has a ‘in accordance with host state law’clause. After reviewing several arbitral cases on this matter, this paper witnesses certain jurisprudence in this respect. First, there is agreement among arbitral tribunal that explicit ‘in accordance with host law’ clauses have the effect of depriving foreign investments from treaty protection and work as a bar to the jurisdiction of the tribunal. On the other hand, where the treaty does not have such clauses, arbitral tribunal regarded the illegality of investment as a matter of admissibility rather than of jurisdiction. Secondly, arbitral tribunals agree that illegality depriving a treaty-based tribunal from jurisdiction does not refer to every illegality, but that it only effects illegality of the investment itself. Third, as regards timing, arbitral tribunals agree that only initial illegality is relevant and subsequent changes of host state’s laws do not deprive an investment form treaty protection. Furthermore, knowledge of or acceptance by the host State of the illegality will not allow the State to invoke a breach of domestic law by the investor in order to evade treaty protection. Fourth, illegal conduct of the host State, as contrast with that of investor, will not affect treaty protection of an investment. Finally, in the absence of an explicit in accordance with clause, illegality of the investment needs to be dealt with at the stage of the merits rather than of jurisdiction.
  • 7.

    Schutzumfang und Voraussetzungen für die Schutzfähigkeit von Computerprogrammen im deutschen Urheberrechtsgesetz

    Choi, Sang Pil | 2016, (16) | pp.149~169 | number of Cited : 0
    Abstract
    Nach der früheren deutschen Rechtsprechung wurden an den Urheberschutz von Computerprogrammen sehr hohe Anforderungen hinsichtlich der Schöpfungshöhe gestellt. Danach waren lediglich Computerprogramme urheberrechtlich geschützt, die das alltägliche, durchschnittliche Programmiererschaffen deutlich überstiegenen, obgleich § 2 Abs. 2 UrhG von jeher nur das Vorliegen eines Werkes im Sinne einer persönlichen geistigen Schöpfungn verlangte. Diese restriktive Rechtsprechung, durch die Inkassoprogramm-Entscheidung aufgestellt und durch die Betriebssystem-Entscheidung bestätigt, wurde jedoch durch die Umsetzung der Richtlinie aufgehoben, sodass Computerprogramme nun auch geschützt sind, soweit sie nur individuelle Werke in dem Sinne darstellen, dass sie das Ergebnis der eigenen geistigen Schöpfung ihres Urhebers sind. Es ist noch immer dringend erforderlich, die Normen für die Entscheidung der Schöpfungshöhe im geltenden koreanischen UrhG gesetzlich festzuschreiben. Das deutsche UrhG, in das die Richtlinie der EU aufgenommen worden ist, sollte dieser Gesetzänderung als Vorbild dienen.