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

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2018, Vol., No.21

  • 1.

    The Current Development Situation, Dilemma and Breakthrough of Commercial Arbitration in China: Based on the Practice of Chongqing Arbitration

    Chen zhi | YE SHI QING | 2018, (21) | pp.1~17 | number of Cited : 0
    Abstract
    Arbitration is the parallel of courts of justice in the dispute settlement of commercial disputes. The basic principles of commercial arbitration are voluntary, independent and fair & reasonable. Arbitration has made great achievements in boosting economic development, but there are also some institutional problems that are difficult to overcome. By analyzing the current development situation of Chongqing commercial arbitration, some problems can be found in China’s arbitration system, which mainly include administrative and judicial intervention, the low awareness of seeking for arbitration and the poor support of the courts of justice to the execution of arbitration legal documents and so on. In order to solve these problems, firstly, arbitration has to get rid of the administrative constraints and enhance its autonomy and independence; secondly, try to make the dispute parties voluntarily participate in the arbitration proceedings; thirdly, increase coordination to solve the enforcement of arbitration legal documents. Also, it is wise to conform to the trend of Internet development, for instance, solving commercial disputes by online arbitration system.
  • 2.

    The Theoretical Changes and Legislative Analysis of the Principle of Good Faith in Civil Litigation

    Bao,Bing-Feng | 2018, (21) | pp.19~40 | number of Cited : 1
    Abstract
    In civil procedures, the principle of good faith is that justice, honesty and good faith should be obeyed by the court, the party concerned and other litigant participants when they participate in civil proceedings. Whether the principle of good faith which originates in the field of substantive private law can extend to the realm of civil litigation has sparked quite a heated debate among scholars of the civil law system. The principle of good faith is the legalization of moral principles in civil litigation, which can both coordinate the actions of the subject of the proceedings and coordinate the conduct of the court’s trails so that the proceedings will go smoothly and finally fairness and justice will be achieved. Therefore, China’s Amendments to Civil Procedure Law in 2012 formally adopted the principle of good faith as the basic principle. The expression of the legislative text that “In civil procedures, the principle of good faith shall be adhered to.” has a certain ambiguity. However, it can be seen from the changes which is from the draft to the formal legislation in the process of the amendment of Civil Procedure Law that the principle of the good faith should not only constrain parties, but also constrain courts and other litigant participants. The comprehensive application of the principle of good faith towards the participant subject of litigation, on the one hand, shows the necessity of introducing the principle of good faith in the field of civil procedure, on the other hand, also demonstrates the importance of the principle of good faith as a fundamental principle regulating all subjects.
  • 3.

    Rules on International Jurisdiction to Adjudicate under the 2018 Draft of the Amended Private International Law Act: with a Focus on its General Parts

    Suk, Kwang Hyun | 2018, (21) | pp.41~126 | number of Cited : 11
    Abstract
    In order to introduce detailed rules on international jurisdiction to adjudicate the Ministry of Justice of Korea (“KMOJ”) had established in June of 2014 a committee (Committee) in charge of amendment of the Private International Law Act of Korea (“KPILA”) and the Committee made efforts to prepare a draft of amended KPILA. Unfortunately, however, the Committee could not complete its mission of preparing a draft. Afterwards the KMOJ prepared a draft of the amended KPILA (“Draft”) and made a prior legislative notice to the public on January 19, 2018. The greatest significance of the Draft is that it has introduced detailed rules on international jurisdiction, which is one of the most fundamental issues in international litigation, which ensures predictability of the courts and the parties to the litigation. However, the Draft has accepted under strict requirements the doctrine of forum non conveniens as understood under Anglo-American law as a means to ensure concrete validity in individual cases. In sum, the Draft aims to enhance legal certainty by introducing detailed rules on international jurisdiction on the one hand, and to ensure concrete validity in individual cases at the same time by allowing the discretion of the courts on the other hand. In this article the author briefly explains major contents of the general parts of Chapter 1 of the Draft following the order of the articles. Article 2 (general rules), Article 3 (general jurisdiction), Article 4 (special jurisdiction of place of business office), Article 5 (special jurisdiction based upon presence of property), Article 6 (jurisdiction based upon relationship), Article 7 (jurisdiction of counter-claim), Article 8 (jurisdiction agreement), Article 9 (appearance), Article 10 (exclusive jurisdiction), Article 11 (lis pendens), Article 12 (decline of international jurisdiction), Article 13 (exclusion of application), Article 14 (jurisdiction of interim measures) and Article 15 (jurisdiction of non-contentious matters). It should be noted that jurisdictional rules will need to be adapted to the change of time. In order to do that we need to review the issues arising from concrete court precedents to be accumulated with time and at the same time to ensure the consistency with jurisdictional rules at the international level and those of other countries.
  • 4.

    Legal Review of China's Public Utility Franchise Contracts

    CHEN DAPENG | CHEN JUNHENG | 2018, (21) | pp.127~155 | number of Cited : 0
    Abstract
    Recently, the market-oriented reform for government public utilities through franchise model is favored by government at all levels, and it has made great progress. The franchise contract is a new type of contract that regulates the rights and obligations, and rationally distributes risks. In the meanwhile, it is an important evidence to effectively solve the franchise disputes. However, unfortunately, the franchise contract, as a new type of contract, is still under the grey zone in China's legal system. It has not been definitely defined by contract law, administrative law, or economic. In practice, the legal property about franchise contract has not been formed consensus in China’s academic circles. Besides, the specific provisions for the contract signing, the basic rules for the contract performance, and the resolutions for the contract violation are still under ambiguities. What should be defined is, whether the franchise contract is definitely and reasonably related with the success of the government public utilities or not. Considering the questions aforementioned, this paper views from the pubic utilities franchise contract, and specifically focuses on the research about the main problems recently existing in China, such as legislative conflicts, contract duration, government guarantees, pricing mechanisms, and risk sharing, to effectively regulate franchise contract, release the capital conflict between government and society, and improve the relevant legal system. Keywords:
  • 5.

    LEGAL FRAMEWORK TO SUPPORT THE NORTHEAST ASIA SUPERGRID PROJECT

    JANG CHANGSUN | Kim, Minchul | 2018, (21) | pp.157~181 | number of Cited : 0
    Abstract
    This paper studies on the current situation analysis of supergrid and the related laws that should be considered to overcome the current problems Northeast Asia facing, such as energy security and environment problems. First of all, we can secure the electricity supply if countries could share electricity using the fact that the time for electricity use greatly varies among countries. Also, construction of a supergrid would enable us to acquire various energy sources making it possible to overcome the energy price disadvantage that the gas price in Asia is more expensive than in North America or Europe. Besides, there will be additional effects resulting from related technologies’ development. From the energy supply security point of view, it will be helpful for peace in Northeast Asia as well. Next, we examined the international law related to trade of electricity for designing of supergrid in Northeast Asia. The automatic and unconditional most-favoured national (MFN) treatment obligation on GATT Article I, and the national treatment (NT) obligation in GATT Article III fully apply to trade in relation to electricity. International law and each country’s municipal law should direct appropriately to supergrid. Also, we reviewed the applicability of ECT for international law framework establishment in energy sector including supergrid. The ECT provisions focus on both free trade in energy materials, products and energy-related equipment, based on GATT/WTO rules and freedom of energy transit through pipelines and grids. It is essential to fully use the ECT potential to the advantage of participating member and observer States of NEA for energy cooperation through ECT.