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

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2017, Vol., No.20

  • 1.

    Introduction to Vietnam's Circular on English Translation regarding the State Administrative System

    SHIN CHOONG IL | 2017, (20) | pp.1~22 | number of Cited : 0
    Abstract
    Vietnam's efforts to become a member of the global economic community were initiated by Doi Moi policy adopted in 1986 by the 6th National Congress of the Communist Party of Vietnam. Thereafter, Vietnam adopted elements for market economy by enacting many laws and regulations, and entered into various international treaties. In 2009, the Ministry of Foreign Affairs of Vietnam promulgated ‘Circular guiding English translation of official names of entities, titles, and senior officials within the State administrative system, for purposes of external relations’. The purpose of this paper is to introduce the contents of the Circular. The Circular provides in detail the English translation of the names of national and local administrative agencies, entities, and titles of senior officials. The Circular shows the intent of Vietnam's government to become a member of the global economic community, and provides the opportunity to review Vietnam's State administrative system at both the national and local levels. Further, it is anticipated that the standard English translation provided by the Circular will help foreign investors communicate with Vietnam's administrative agencies as well as local law firms.
  • 2.

    On the Reform of the Environmental Management System in China from the Perspective of the Principal-agent Theory

    刘彤彤 | Chen Liang | 2017, (20) | pp.23~43 | number of Cited : 0
    Abstract
    Under the background of actively implementing the basic national policy of strengthening the construction of ecological civilization, the reform of environmental vertical management has attracted more and more attention of the government. In the past thirty years of environmental management in China, China has been constantly exploring and reforming. In view of the disadvantages of environmental management in our country, the guiding opinions put forward constructive solutions. Firstly, this paper puts forward the principal-agent theory to provide theoretical support for the theory of environmental straight pipe system; Secondly, the paper analyzes the agent hierarchy and the problems existing in the existing environmental management system; Thirdly, the paper introduces the reform of the existing direct control system and its shortcomings; Finally, under the guidance of principal agent theory, the paper puts forward countermeasures and suggestions.
  • 3.

    Application of Proportionality Principle as a judgment Criteria in Indirect Expropriation in International Investment Arbitration

    이인희 | KIM DAEJUNG | 2017, (20) | pp.45~77 | number of Cited : 0
    Abstract
    Investment-hosting country’s regulatory power on their public policy can often be subject to indirect appropriation to be reviewed as an infringement case on the foreign investor’s investment. It is a critical issue that how we should balance the conflicting interests between the hosting county and the foreign investor. Areas such as environment, public health, security and energy are mainfields that countries are regulating in their national law after receiving investment and as such it is necessary to establish more elaborate set of laws to avoid indirect appropriation claim. Proportionality principle is one of the most highlighted standards that can apply both national and international law. Tecmed v. Mexico is the representative case that the arbitration tribunal has applied the proportionality principle. In this principle, hosting countries should prove that they have met proper suitability, necessity, proportionality and legitimate expectation tests when they exercised regulatory measures upon foreign investor’s investment. The principle has long been applied in constitutional law, administrative law, and WTO/GATT cases. Recently, it has been increasingly used in international investment treaty disputes. Proportionality principle has not yet been shaped as a concrete law, so it needs to be improved more in contents to become national and international law. Arbitration tribunal in investment dispute then can use this principle more efficiently to decide indirect expropriation decision. This will gurantee more stable decision by improving predictability on tribunal as well as helping to establish governments’ regulatory measures which is safe from foreign investment disputes.
  • 4.

    The Subrogation between The Guarantor of Secured Mortgage and Third Party Purchaser

    Lee Sung Jin | 2017, (20) | pp.79~99 | number of Cited : 2
    Abstract
    COMMERCIAL ACT Article 724 (Relations between Insurers and Third Parties) (1) No insurer shall pay the insured amount, in whole or in part, to the insured before a third party has been indemnified for losses caused by an accident attributable to the insured. (2) A third party may directly request an insurer to compensate for losses caused by an accident attributable to the insured, within the limit of the insured amount: Provided, That an insurer may assert against the third party with a defense which the insured has in connection with the accident. When an applicable law is discussed on the Supreme Court decision, the claim for payment of insurance money of insured person can be recognized by applicable law of an insurance contract. Thus the legal character of right that a third party may directly request an insurer is come across as right to claim insurance money. A direct claim for payment of third party is construed as subject of applicable law on insurance contract.
  • 5.

    “MATERIAL RETARDATION” OF ANTIDUMPING LAWS: IS IT A DEAD LETTER?

    HYUNHO KWON | 2017, (20) | pp.101~131 | number of Cited : 0
    Abstract
    The purpose of this article is to search for the legal and systemic bases in WTO Anti-Dumping Agreement that may assist in developing Korea’s newly emerging industries in the changing world of competitive international trade. For this purpose, this article analyzes the meaning of “injury” in WTO Antidumping agreement in order to come up with the factors that prevent “material retardation” of the establishment of a domestic industry. Through examining these factors, it has become certain that a country is able to take anti-dumping measures based on “material retardation of the establishment of a domestic industry” under the 1994 GATT and the WTO’s Antidumping Agreement. Their provisions, however, are so general and abstract that they can not produce specific and clear criteria, thus posing a problem that could not be solved by analyzing the findings of the WTO’s Dispute Settlement Body. Accordingly, it de facto entrusts the WTO members with deciding on and applying the applicable criteria for the material retardation of the establishment of a domestic industry. As the matters stand, this article endeavors to search out confirmable or referable criteria from the rules and practices of the United States, EU and existing Korean to protect Korea’s newly emerging industries. Especially, according to the findings of the authorities of United States, EU and Korea, there was a tendency of accepting an argument for ‘material retardation’ in cases of applying some objective standards to pending cases. On the contrary, the contention of material retardation was not accepted in case that there was no real business activities, or if the argument depended on only expectations of a business. These examples are founded in the cases of “outboard motors originating in Japan” and “mechanical wrist-watches originating in the USSR.” Meanwhile, there are some points which deserve the Korean government’s attention in using antidumping measures to build up and develop newly emerging industries. First, the disputes related to application of “material retardation” of the establishment of a domestic industry are decided by the WTO’s Dispute Settlement Body (DSB). It would be worthwhile, therefore, to keep track of the tendency of the DSB findings that continuously suggest concreteness of the law, and to use the rules within that boundary. Second, the application of “material retardation” of the establishment of a domestic industry runs reciprocally between the member countries of the WTO. It means that a member cannot unilaterally impose and apply its own criteria and. And finally, there needs to be a balance between political and legal considerations. This suggests that if the political considerations, although they derive themselves out of policy concerns, deviate from the WTO rules, they could be treated as violations of international laws. Consequently, as political considerations for preventing domestic newly emerging industries are limited by the WTO rules, they need to keep mindful of their legal assessment.
  • 6.

    A Critical Review of Criteria for Domestic Regulation in GATS - With a Special Reference to the 'Necessity' Test in GATS Article VI.4 -

    LEE JIN-KYU | 2017, (20) | pp.133~149 | number of Cited : 1
    Abstract
    As stated in the preamble of GATS, services can be regulated by Member States to achieve public interest policy objectives. The nature and function of domestic regulatory measures depends greatly on the service sector to which they are applied and the country's policy goals to be achieved. Domestic regulations on service can be national policy tools that influence the delivery of services by service providers in a specific way, and unnecessary domestic regulations on services can be controlled against the trade. Despite such a high risk, however, GATS article VI, which is the underlying clause on domestic regulations, specially paragraph 4 providing the substantive and specific obligations on domestic regulations, have not been laid down as a clear and specific requirement. To overcome these problems and limitations, the discipline of domestic regulations need to provide foreseeability on the impact of domestic regulatory decisions and ensure that there is a clear consensus on the future outcome. First of all, governments should actively work together on areas with significant regulatory effects, as well as on cooperation needed to strengthen, improve and enforce regulations on trade in services. In particular, many developing countries should pay keen attention to regulatory improvements to remove barriers to service trade. An important element of negotiation on trade in services is creating mechanisms to promote pro-competitive domestic regulatory reform and international regulatory cooperation.
  • 7.

    Study on the legal mechanism of overseas purchase - From the perspective of the protection of consumers' rights and interests -

    이진성 | RUAN, LI | 2017, (20) | pp.151~175 | number of Cited : 0
    Abstract
    The advent of the Internet era has led to the birth and development of numerous emerging industries, and online shopping has gained new opportunities for development in this wave. At the same time, along with the economic globalization and trade globalization, the consumer has far not satisfied with the domestic consumer market, homes will be able to experience high-quality foreign products and services has become the ultimate international public consumption, so the overseas purchase industry came into being. At the same time, along with the economic globalization and trade globalization, the consumer has far not satisfied with the domestic consumer market, homes will be able to experience high-quality foreign products and services has become the ultimate international public consumption, so overseas purchasing industry has emerged in this wave. Overseas purchasing is widely welcomed by consumers based on their good quality, low price and simple and convenient transaction mode. The huge demand for overseas purchase makes the current overseas purchasing industry have great potential for development. However, as a new industry, overseas purchasing industry is still immature in many aspects, such as tariff problem, behavior regulation of purchasing agent, purchasing market order and so on. Among them, the protection of consumers' rights and interests is the most serious and the most easily neglected. Among the parties involved in overseas purchasing, consumers are in a serious vulnerable position, and their legitimate rights and interests are easily infringed. Unfortunately, the laws governing the protection of consumers' rights and interests in overseas purchasing are currently in a gray area. Under this premise, how to improve the legal system and strengthen the protection of the rights and interests of consumers has become a common concern for the public. In view of this, this article will take the protection of the legal rights and interests of consumers as the perspective. First of all, the basic overview of the overseas purchasing industry is introduced. Secondly, it reveals the common problems existing in the overseas purchase and purchase industry and analyses one by one. Finally, the pertinent countermeasures are put forward. In order to achieve the ultimate goal of the state to effectively standardize the order of the overseas purchase market, regulate the wrongful act of the purchaser and safeguard the legitimate rights and interests of the disadvantaged consumers.