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

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2017, Vol., No.19

  • 1.

    THE DEFENSE OF SET-OFF AT THE ENFORCEMENT STAGE OF FOREIGN JUDGMENTS AND ARBITRAL AWARDS: FROM THE PERSPECTIVE OF JAPANESE LAW

    MIKU KOIKE | 2017, (19) | pp.1~20 | number of Cited : 0
    Abstract
    Set-off is incredibly important in business for its function of simplifying payments. In cases where a judgment or an arbitral award has been rendered against a party in a foreign country, that party may, insofar as they themselves have a right of claim against the opposing party, wish to set-off the claim that has been acknowledged by the judgment or award with their own. If a party has grounds to oppose a foreign judgment or award, whether this includes recourse to set-off or not, the question of how to make full use of these means is important from the perspective of business strategy. This article will examine, how a defense against a judgment or an arbitral award that has already rendered in a foreign country, it is dealt with in Japanese enforcement proceedings. After illustrating enforcement procedure of foreign judgments and arbitral awards in Japan, recent judgments which concern some defenses at the stage of enforcement will be introduced followed by an examination of how these issues should be interpreted. In particular, questions which arise in relation to jurisdiction and defense of set-off in the proceedings of enforcement are dealt with.
  • 2.

    Legislative Choice of Chinese Commercial Franchise Contract: Civil Code or Special Legislation

    刘骏 | 胡光志 | 2017, (19) | pp.21~42 | number of Cited : 0
    Abstract
    Commercial franchise has played an important role in our daily life, and commercial franchise contract is the core of this business model, so its contract system design is particularly important. The commercial franchise contract is a relational and continuing contract, which has a large specificity compared with the general contractual relationship, and it puts forward the specific requirement of the measure of interest. Commercial franchise contract faces a new legislative choice in the process of compiling the civil code, civil code or specialized legislation has become a controversial issue. The legislative experience of coexistence of two kinds of legislative models in other countries can not provide an optimal model for reference, and the domestic legislation advocates pay more attention to the technical problem how the commercial franchise contract can be a part of the civil code. It is difficult to choose in this case. In the judicial decisions of the commercial franchise contract dispute, the existing administrative special legislation has been applied in changed ways, and the system design to protect the vulnerable franchisee did not really work. In view of this, commercial franchise contracts stipulated in the civil code civil code is more conducive to restrict the application of justice, but also better reflect the general rules and practical needs of franchise contract.
  • 3.

    A Study on Legal regulation of stock crowdfunding platform

    沈萍 | 胡光志 | 2017, (19) | pp.43~67 | number of Cited : 0
    Abstract
    In recent Internet financing, equity-based crowd-funding has surged as a very new concept and model, which provides a more efficient and effective financing channel for start-ups and ordinary investors and triggers the attention of all sectors of society. However, under the premise of “Securities Act” and other relevant financial laws and regulations are not modified, the operation of equity-based crowd-funding must be with“illegal” color. Therefore, based on angel, certification, and membership operation model, equity-based crowd-funding platform operates with a combination of limited partnership and related investment restrictions and other measures. However, equity-based crowd-funding platform is still facing the operation risk of incompletedue diligence and false propaganda, as well as legal dilemma of disunitedstandardson information disclosure and imperfect audit and supervision. This thesisfirst proposes legal regulation based on the analysis of the regulatory system defects of equity-based crowd-funding platform,so as to promote the healthy development of equity-based crowd-funding.
  • 4.

    In Commemoration of the 20th Anniversary of Korea’s Membership of the Hague Conference on Private International Law: Retrospects, Current Status and Prospects

    Suk, Kwang Hyun | 2017, (19) | pp.69~165 | number of Cited : 5
    Abstract
    Conference”) was first convened in 1893 to work for the progressive unification of the rules of private international law and later has been transformed into a standing organization. 2017 marks the 20th anniversary of Korea’s membership of the Hague Conference. In order to commemorate it, the Hague Conference, together with the Ministry of Justice and the Korean Association of Private International Law, has organized “HCCH Asia Pacific Week 2017” conferences from July 3 to 6 of 2017 in Seoul. At present, among the numerous conventions adopted by the Hague Conference (“Hague Conventions”), Korea is a state party to the following four conventions: ① the Service Convention of 1965, ② the Apostille Convention of 1961, ③ the Evidence Convention of 1970, and ④ the Child Abduction Convention of 1980. The Child Abduction Convention is a first for Korea in many aspects. It is the first Hague Convention for Korea on family law matters and issues related to applicable law. It is also the only Hague Convention for which Korea has enacted an implementation act at the time of accession. Korea has made remarkable progress since becoming a member of the Hague Conference in 1997 in that it has acceded to four Hague Conventions and come to handle various international tasks under those conventions. However, there is much room for further improvement. The fact that Korea has not yet ratified the Adoption Convention is most unfortunate. We should properly utilize the Hague Conference as the “The World Organisation for Cross-border Co-operation in Civil and Commercial Matters”. In Korea, lawyers tend to focus more on the interpretation of the current law and less on legislation. Many of them are particularly indifferent to the international efforts for the unification of laws and do not even realize the necessity of these efforts. However, such attitude should be changed. It is also very regrettable that the Korean society has not been able to cultivate many experts, especially expert researchers, on private international law for the past 20 years. This article deals with the following issues: the major contents of the Hague Conventions to which Korea has acceded and the measures taken by Korea at the time of accession (Chapter Ⅱ), the influences the Hague Conventions had on Korea’s legislation of private international law (Chapter Ⅲ), the Hague Conventions Korea should consider acceding to in the future (Chapter Ⅳ) (in this Chapter, the author makes a brief introduction to the Adoption Convention, the Choice of Court Convention, the Child Protection Convention, the Child Support Convention, the Adult Protection Convention, the Securities Convention and the Trust Convention), the future task of Korea with respect to the Hague Conference (Chapter Ⅴ), the author’s personal experiences, memories, and thoughts (Chapter Ⅵ), and concluding remarks (Chapter Ⅶ). At the end of the paper, the author briefly examines, as a related matter, the Supreme Court of Korea’s plan to establish the so-called “IP Hub Court” in Korea. Before delving into the discussion on the main topics, the author briefly touches upon the concept and scope of private international law.
  • 5.

    INTERNATIONAL JURISDICTION OVER A CIVIL CASE ON THE BASIS OF SUBSTANTIAL RELATIONSHIP

    Kim, Yong Eui | 2017, (19) | pp.167~191 | number of Cited : 0
    Abstract
    The history of Korean courts’ international jurisdiction over a civil case is not so long. Until 2001, there was no statutory provision in Korea on the international jurisdiction over a case related to the property rights. Civil cases with the foreign elements started from the family law related disputes and, in 1972, the first Supreme Court (the “Court”) decision on the international jurisdiction came out from a civil case related to property rights. However, even up to now, there are not so many Court cases dealing with the international jurisdiction. As international business transactions increase in Korea, the number of cases also increased. Now, about 100 civil cases where international jurisdiction was at issue were decided by multiple levels of the courts in Korea. Together with the fact that the history of international jurisdiction is short and there are not sufficient number of cases, the statutes to govern the requirements and standards for the courts’ exercise of the international jurisdiction are not yet well settled or provide clear and detail descriptions thereof. In addition, it seems that well established directives of the cases regarding the requirements and standards are also lacking. The purpose of this article is to contribute to resolving the current problems through the case researches and analyses focusing on the key facts where the courts found the “substantial relationship with Korea” the most essential element for the international jurisdiction as is stated in the article 2 of Koran Private International Law so that the courts and lawyers in Korea may properly interpret and apply the article 2 of PIL. Thereby this article aims to contribute to enhancing the predictability and legal stability not only domestically but internationally and achieving the status of internationally recognized and reliable forum in the world. Especially, This article is written in English to be of good reference for not only Korean scholars and practitioners but the foreign scholars and practitioners with good interest in Korea by way of citing and reviewing as many foreign cases together with Korean cases as possible in comparative way of study.