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pISSN : 2982-5903 / eISSN : 2982-5946

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2018, Vol., No.23

  • 1.

    A Study on the Transparency Principle of the ‘WTO Agreement on the Application of SPS Measures’

    LEE JIN-KYU | 2018, (23) | pp.1~19 | number of Cited : 0
    The SPS Agreement imposes the obligation of Members to promptly notify, provide information and consult on their SPS measures, which are examples of the transparency principle of this Agreement. As the liberalization of agricultural products through WTO and FTAs expands, it is true that the implementation of transparency by each member's SPS measures caused many conflicts. In order to minimize trade friction with the major parties involved in the SPS measure and to actively respond to the actions of other countries, it is necessary to establish an effective system to ensure transparency in and out of the country. Therefore, we need to reaffirm the transparency principles required by the SPS agreement and the obligations of members and closely analyze the major issues related to the transparency of the disputes that have been raised by the WTO. Also, it is urgent for us to supplement the relevant domestic legal system by referring to Australia's best practice of establishing a unified legal system to ensure and enhance transparency in the SPS agreement.
  • 2.

    The Review of Necessity and Possibility for Rule-Making of Unification of Rules of Private International Law

    Park Eunyoung | 2018, (23) | pp.21~39 | number of Cited : 2
    The international society is making efforts to promote and enhance international trade. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is a good example. Each country also makes these efforts individually. These include the preferential trade agreement to alleviate trade barriers between the two countries or certain countries; or to abolish them altogether. A number of studies have taken them as a good example to stimulate international trade. However, most studies overlook the harmonization with the private international law other than the public international law. There is a possibility that various private rules may be applied to the areas of international public rules, which may interfere with international trade. Therefore, it is very important to harmonize international and international law. In contrast, discussions to promote international trade by establishing internationally unified standards of private international law are only rarely done. Attempting to harmonize the rules of private international law can help promote international commercial transactions. For example, in case that you do not recognize the benefits of a preferential trade agreement, you can exploit international private rules to fill that gap. This can be seen through the CISG. This Convention may be an important guideline in attempting to harmonize the rules of international private rules. In countries that have little or no preferential trade agreements or free trade agreements, it is highly likely to ratify these international private rules. Therefore, this study regarding international trade norms will be an opportunity to expand not only the public international law but also the private international law.
  • 3.

    Rules on International Jurisdiction to Adjudicate under the 2018 Draft of the Korean Private International Law Act Amendment: Focus on the Special Provisions

    Suk, Kwang Hyun | 2018, (23) | pp.41~145 | number of Cited : 16
    In June 2014, the Korean Ministry of Justice established a committee (“the Committee”) in charge of amending the Korean Private International Law Act with the aim of introducing detailed rules on international jurisdiction to adjudicate. A draft amendment bill (“the Draft”) was prepared and finally on 19 January 2018, prior legislative notice has been given to the public. The most important aspect of this Draft is that it includes meticulous rules on international jurisdiction to adjudicate, which are among the most fundamental issues in international civil litigation, in order to enhance predictability for the courts and for the parties to the litigation. However, as a means to ensure concrete adequacy in individual cases, the Draft accepts under strict requirements the common-law doctrine of forum non conveniens. In sum, the Draft aims, on the one hand, to reinforce legal certainty by introducing detailed rules on international jurisdiction, and on the other, to ensure concrete adequacy in individual cases by allowing courts discretion. In this article, the author briefly presents the major contents of Chapters 2 to 10 of the Draft following the order of the articles. The specific order of discussion is as follows. First, the author examines the structure of the body of rules of international jurisdiction (Chapter Ⅱ), then, discusses each of the special provisions on cases related to person (Chapter Ⅲ), to rights in rem (Chapter Ⅳ), to intellectual property rights (Chapter Ⅴ), to claims (Chapter Ⅵ), to family law (Chapter Ⅶ), to inheritance (Chapter Ⅷ), to promissory notes, bills of exchange and checks (Chapter Ⅸ) and on maritime cases (Chapter Ⅹ), as well as the other rules of international jurisdiction (Chapter Ⅺ), the time of examination and judgment of international jurisdiction issues (Chapter Ⅻ), the practical meaning of the introduction of international jurisdiction rules (Chapter ⅩⅢ) and the future tasks regarding the amendment of the Korean Private International Law Act (Chapter XIV ), and lastly the author comments on the work and operation of the Committee (Chapter XV). The important task for the Korean courts is to understand the purposes of the Draft, and to apply the rules therein appropriately. According to the Draft, the courts are no longer allowed to make conclusions based on the so-called “case-by-case analysis”, and they are required to first determine whether they have international jurisdiction by applying the international jurisdiction rules of the Draft. Moreover, even when their international jurisdiction is admitted, Korean courts must faithfully implement the idea of the allocation of international jurisdiction by declining to exercise jurisdiction when there exists an exceptional circumstance rendering such exercise inappropriate in the case concerned.
  • 4.

    A Study on Judicial Application of Guiding Cases in Mainland China - On the Basis of 118 Civil and Commercial Cases in 2017

    WU JIANPING , ZHANG XIAO | 2018, (23) | pp.147~170 | number of Cited : 1
    In 2010, the case guidance system was formally established in Chin a,which is a great-leap-forward development of the orientation and application of previous cases in our judicial practice. After the establishment of the system, the Supreme People's Court (hereinafter referred to as SPC) made it clear that judges should refer to or apply the guiding cases when deciding similar cases. This clarifies that the guiding cases is actually binding. By December 31, 2017, SPC has issued a total of 92 guiding cases. These cases have not only been published in batches, but also been uploaded to official website by SPC. The case guidance system meets the need of judicial practice in our country and also complies with the trend of the gradual merge of the two major legal systems. In this paper, 118 civil and commercial cases involving in guiding cases in 2017 are selected as the object of analysis, and the judicial practice of guiding cases is studied from both macro and micro perspectives. The macro perspective mainly concentrates on the application of guiding cases in Local People's Court at all levels across the country. The micro perspective focuses on the study of specific judgment documents. From real and concrete data, we can find out the characteristics of the judgment documents, and analyze the problems in the operation of the case guidance system, and put forward feasible suggestions to improve the system.
  • 5.

    Research on the reform pilot project of real estate tax in China - Reflection on the reform of real estate tax in Chongqing and Shanghai -

    RUAN, LI , CHO DONG JE | 2018, (23) | pp.171~199 | number of Cited : 1
    “The people are the root of the country, only when the people are truly stable can the country achieve peace.” people’s basic necessities of life related to the national economy and people’s livelihood. No matter where, the house is closely related to people's basic life and happiness index. Real estate, as a daily necessities, has great demand rigidity in a large population like China. The fixed and limited nature of China's urban land determines that the supply of real estate is seriously lacking in flexibility. Under the intense contradiction between supply and demand, real estate has been gradually distorted into a special commodity with great investment and speculative value in the development process. Since the reform and opening up, especially since 1990s, with the establishment of the goal of socialist market economic restructuring, China's real estate has gradually moved from the past government supply to the market supply, and the real estate market has been continuously developing and growing. Because of this, in the process of rapid development of China's real estate market, the phenomenon of rapid and sustained rise in housing prices is common throughout the country. In practice, high housing prices will enable high-income groups to have more than one housing at the same time, and houses will become an important tool for such groups to invest in making money. Its value has gradually deviated from its basic functions; On the other hand, it has increased the cost of buying houses for low-income groups, which has greatly reduced their real incomes. This greatly widened the gap between the rich and the poor in the society, and then brought great influence to the national economic development and social harmony and stability. For a long time, housing prices have always been a hot issue of the people's continuous attention. The discussion on housing tax reform is quite heated. In 2011, Chongqing and Shanghai took the lead in levying property tax for all non business property, and property tax reform is imperative. It is worth pondering over how to stabilize housing prices through property tax reform and promote healthy and orderly development of the real estate market. Therefore, this paper takes the pilot project of real estate tax reform in Chongqing and Shanghai as the perspective, Through the analysis of the relevant laws and policies of the current property tax in China, the key problems in the process of the property tax reform are found and the corresponding suggestions are put forward in order to achieve the ultimate goal of the reform of the property tax.