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pISSN : 2982-5903 / eISSN : 2982-5946

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2019, Vol., No.24

  • 1.


    Silvia Barona Vilar | 2019, (24) | pp.1~18 | number of Cited : 0
    Arbitration is a piece of the new conception of Justice. The legislators have changed the rules of arbitration and there is a sort of uniform Act of global arbitration. CNUDMI Act is the protagonist of this metamorphosis. With some contractual and jurisdictional elements arbitration is arbitration and this is its real legal nature. Two fundamental elements constitute its essence. The freedom and autonomy of the parties, on the one side, and the exercise of the function of the arbitrators and its effects, on the other. There is not arbitration without them.
  • 2.


    Carlos Esplugues | 2019, (24) | pp.19~50 | number of Cited : 0
    International maritime industry constitutes one of the areas in which the resource to arbitration and other ADR devices have enjoyed a traditional and far-reaching character. This trend has increased in recent years due both to the highly complex nature of the maritime industry and to the costs and delays that referring disputes to public courts encompass. However, international maritime arbitration cannot be approached as a unitary reality as regards those disputes referred to it and prospective maritime controversies may heavily differ one from each other. In this article we will deal with the legal regime of arbitration agreements in the specific field of disputes arising out of the use of the ship or the carriage of goods on board. We will specifically refer to the solutions provided to the issue of the validity of the incorporation by reference of charterparty’s arbitration clauses in Bills of Lading (B/L) in some relevant jurisdictions and regulations.
  • 3.

    The Research on Legal Issues of Equitybased Crowd Funding in China

    MA WEI-DONG , ZHU HUIQIN | 2019, (24) | pp.51~67 | number of Cited : 0
    Equity crowfunding is very crucial for the innovation-oriented countries and the development of equity crowdfunding platform opens the new gate for solving the problem of difficult financing existing in small and medium-sized enterprises, so it is of great significance to fasten the cultivation of new technologies, new industries and find out the new economic growth points. In China, the equity crowdfunding develops rapidly, but there are more and more problems being exposed, such as the forged projects in the platform, suspected legal absorbing of the public deposits, crowfunding swindle, issuing stocks and securities without supervision and permission and so on. All the frequently-exposed problems will seriously damage the legal rights and interests of investors. Nowadays, the formal regulation rules for equity crowdfunding platforms are not established and the relevant rights and obligations to be clarified for equity crowdfunding platforms from the perspective of legality are to be determined by the new “Securities Laws”. In this regard, it is of practical significance to improve the legal supervision and management mechanism in equity crowdfunding platforms as soon as possible. The paper analyzes the current status of legislation for supervision and management of crowdfunding platforms in China, as well as the relevant judicial practices. According to the problems of suspected legal absorbing of the public deposits, crowfunding swindle, issuing stocks and securities without supervision and permission and so on, the paper puts forward the suggestions on improving supervision and management of crowdfunding platforms in China and carrying on the systematic construction after drawing lessons from the mature modes of supervision and management in foreign countries. In this regard, the qualified investor access system shall be established, the hierarchical information disclosure mechanism shall be set up, the third-party fund depository system shall be improved, cooling-off period system for capital disposal shall be founded. It is recommended that the relevant supervision departments may follow them up timely and improve the legal supervision and management system in the platform as soon as possible so as to protect the rights and interests of investors in a better way.
  • 4.

    The theory of fair liability limits of judicial application - in our country the tort liability law article 24 as the breakthrough point

    Zhu,FuYong , LUO, FUYUN | 2019, (24) | pp.69~88 | number of Cited : 0
    Because there are some misunderstanding about the logical starting point to the fair liability, it lack of self-consistency between general provisions of fair liability and special provisions, The expression of the tort liability law article 24 is high abstract and general ,and lack of operational rules, which lead to applicable conditions of fair liability in judicial practice undefined, and the unlimited expansion of the applicable scope, and even abuse the fair liability, which are substantial influence on the individual justice. therefore, to resolve the above problems, we need to build a tort liability loss-sharing system model, pinpoint placement about function of fair liability, refine applicable conditions about fair liability of the general terms, to enhance the operability of the fair liability, the legal behavior - fair liability applicable - produces compensation obligations - breach obligation of the statutory compensation -liability- compensation ,which is shaping logical path, legitimacy and rationality of Judicial application about fair liability is proved by Internal justification and external justification, which enhance the acceptability of the results.
  • 5.

    A Study on the Legal Structure of Long-term Rental Housing in China

    Zhang Zhenbao | 2019, (24) | pp.89~125 | number of Cited : 0
    Since 2016, the Chinese government has issued a number of policies on cultivating the housing rental market in order to solve various problems in the real estate market. The relevant content of promoting the development of the housing rental market was written into the report of the 19th Congress of the Communist Party of china. Although the evaluation of the development of the long-term housing rental market is very good, but there are still many problems. The representative problem is the collapse of the capital chain rupture of the operating company of the financing long-term rental housing. Analysis of the reasons, the lack of legislation is the fundamental problem. The rental method of Chinese houses has changed greatly from the traditional housing rental to the current financing long-term housing rental with the development of the times. The legal structure used in the financing process determines the benefits you can acquire and the risks you will bear. In order to occupy the market quickly, the long-term housing rental operating company has developed various financial products by exploring cooperation with financial institutions and network platforms. The production of financial products is accompanied by corresponding risks. The development of a healthy long-term rental housing market and the protection of investors are the intent of the relevant legislation. In the legislative process, it is necessary to learn the experiences of the advanced countries in the US and Japan. This paper explains the types of long-term rental housing and its legal structure, describes the problems of financing long-term rental housing and related financial products, examines the problems of long-term rental housing and suggests ways to improve it by borrowing experience form the US and Japan.
  • 6.

    A Legal Study on the Utilization of ETR

    LEE SANG CHEON , KIM EUN YEONG | 2019, (24) | pp.127~160 | number of Cited : 2
    The basic direction to utilize ‘mutual distributed ledger’ based on blockchain skill has not been fixed yet. Seemingly we can say that the blockchain industry should be supported regardless of cryto-currency, but actually there are unsatisfied supports for the blockchain industry by the government, for the time being it seems that we are trying to regulate cryto-currency. If it is difficult for us to say what kind of role cryto-currency could play, It should be also difficult to decide whether it would be right for us to regulate cryto-currency or not. Actually it would be self-contradictory that the blockchain industry could be boosted under the circumstance of cryto-currency regulation. we should note that the blockchain skill has originated from the beginning with cryto-currency. The idea of government would be that the blockchain industry could be promoted widely in other areas without crypto-currency. But we are in the circumstance that there is no better industrial area to take motive to research and develop blockchain skill from than cryto-currency. I think the attitude of government is almost as same as we should put aside the R&D of blockchain skill for the time being. As contrasted with us foreign countries such as Switzerland ets. are supporting crypto-currency very positively. They have made herbs for crypto-currency and blockchain industry, one of them is ZUG in Switzerland. We are behind Japan and China in blockchain skill. We are at the top in IT technology, but we are not so in blockchain skill, behind Japan and China. It should be said that we are in the hard situation to follow them. Timely the UNCITRAL has tried to define Electronic Transferable Records and in the end the UNCITRAL Model Act on Electronic Transferable Records was made in consideration of blockchain skill in 2017. We are in need of the legislative respondence to the above legislation by the UNCITRAL. However we have limits in solving the legal problems by way of the appliance of existing laws, and new legislation should be needed. Only to take the way of partial revision in existing laws shouldn’t be sufficient, if so all new legislation should be needed to solve the above problem. For ‘mutual distributed ledger’ based on blockchain skill as way of electronic registration is quite different from that of the existing concentric electronic registration. For all that, in my thought it is not the time to make the general basic law for supporting blockchain industry. It’s too early to do that. The legislation should not be biased against a special skill and be equal to every one.
  • 7.

    Burden of risk by change of Legislation under the Contract for International Sale of Goods

    WOOJOO BYUN | 2019, (24) | pp.163~181 | number of Cited : 1
    It's usually time-consuming to complete a contract in transactions between parties with offices in different countries. International transactions involve a variety of risks that the party cannot foresee compared to domestic transactions. In other words, after signing the contract, there are many dangers involved in the theft, fire, and corruption of goods. Therefore, the parties to the contract must engage in the transaction taking into account the possibility of such a risk. Furthermore, to avoid economic losses that may arise from it, it can be said that setting reasonable standards about the burden of risk is a matter of paramount importance. In this respect, in the event of a new or existing law being enacted to the contract after signing the contract. The performance of the contract itself is possible, but changes to those laws add to the burden that both parties have never anticipated. With respect to these issues, it is necessary to consider whether these risks should always be transferred from the seller to the buyer when there is nothing specifically set by the parties to the ‘Change of Legislation’ in international transactions.