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

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2019, Vol., No.25

  • 1.

    AN ANALYSIS OF THE CIVIL LITIGATION RECONCILIATION SYSTEM IN CHINESE LAW

    Bao,Bing-Feng | WangYue | 2019, (25) | pp.1~37 | number of Cited : 0
    Abstract
    The civil Litigation Reconciliation system, aiming at eliminating civil disputes, is a procedural action that both parties in face of judges make mutual concessions and compromise in order to terminate the lawsuit or part of it during proceedings. Now, under the background of the court’s trail pressure increased dramatically, how to find a dispute resolution which will be more effective than trial has become a big issue that is focused by judicial circles in different nations and regions. Establishing a civil Litigation Reconciliation system on the basis of parties’ consensus is favored by individuals, however, Civil Procedure Law legislated in 1991 only prescribed it fundamentally in Article 51: “Both sides of a civil action may reach a settlement themselves.” And then, although Civil Procedure Law experienced 3 times amendments in 2007, 2012 and 2017 respectively, there were not any involvements in settlement provision. Therefore, it’s necessary to design and improve Chinese civil Litigation Reconciliation system from the aspect of its methods, time, expense burden, forms and effects.
  • 2.

    Construction of Internet Court in China:Inspection and Prospect

    YANG TAO | LIU SHUILIN | 2019, (25) | pp.39~59 | number of Cited : 0
    Abstract
    The predicament of network governance caused by “network-related disputes” brought about by the development and prosperity of the Internet has prompted Internet courts to be first to build in China. The exploration of Internet courts has gone through two stages and formed useful experience. However, neither of these two stages of exploration has clearly defined the basic positioning, construction methods and peripheral boundaries of Internet courts, which makes the exploration of Internet courts in China seem scattered and blind. In the future, the construction of Internet courts in China should face up to the above problems, clarify the exclusive jurisdiction of Internet courts over “internet-related disputes”, and sort out the unique functions and positioning of Internet courts. Furthermore, we should adhere to the Internet thinking in the construction of Internet courts, break the shackles of traditional judicial concepts with Internet thinking, and guide the construction of Internet courts. In addition, we should also pay attention to the boundaries of the Internet court system and use the judicial publicity mechanism to confront the court's powers in the Internet courts, so as to guarantee the restraint of litigantism on the Internet courts.
  • 3.

    The Study on the Legal System of the Socialist Market Economy with Chinese Characteristics

    WEI, QIANG | WANG, YANG | 2019, (25) | pp.61~83 | number of Cited : 0
    Abstract
    Market is one of the means to allocate social resources, and the economic form formed by allocating social resources by means of markets is market economy. The ownership nature of social resources is divided into public ownership and private ownership, and the ownership nature of resources allocated by markets determines the economic system. The economic form formed by the allocation of public ownership resources by markets is the socialist market economy. The market economy and the rule of law are the two cornerstones of modern civilization. The rule of law embodies the development direction of human social progress and is also an important manifestation and important carrier of the objective laws of human political development, economic development and social development. The development of Chinese socialist market economy is in its infancy, so a complete law is needed as a guarantee. The success of the socialist market economy with Chinese characteristics in theory and practice has largely benefited from the positive role of the rule of law in economic construction and the internal unity of the socialist market economy theory and the rule of law. A good rule of law environment will provide strong support for the healthy and orderly development of the economy, and the realization of the rule of law cannot be separated from its cornerstone - the full play of the legal system.
  • 4.

    Review of Cases of the time of passing of risk in the Article 67 CISG

    Choi Sung Soo | 2019, (25) | pp.85~122 | number of Cited : 2
    Abstract
    CISG takes a traditionsprinzip position under Article 66 of the CISG on the passing of risk. Traditionsprinzip refers to the passing of risk from the seller to the buyer at the time the seller delivers the goods to the buyer after the contract is concluded. Article 66 of the CISG declares traditionsprinzip in the passing of risk, and states the effect on the buyer's obligation to pay by traditionsprinzip. Articles 67 to 69 of the CISG set out the rules for when the risk is passed to the buyer. Article 70 of the CISG provides for the allocation of the risk of loss or damage in the event of fundamental breach of contract by the seller. In this paper, the review is focused only on the Article 67 of the CISG, one of the provisions concerning the timing of the passing of risk. Article 67 of the CISG consists of Art 67(1) and 67(2), and Article 67 (1) consists of 3 sentences, here it is necessary to clarify the specific meaning of 3 sentences including contracts of sale involving carriage of goods. Therefore, this article examines the meaning of each provisions of Article 67 of the CISG and, in particular, extracts the cases applying Article 67 (1) of the CISG, and examines whether the first and second sentences of the Article 67(1) applies for the understanding of specific meaning and use of Article 67 of the CISG. The provisions on the time of the passing of risk raises some difficult issues just like, the concept of contracts of sale involving carriage of goods, the meaning of the first sentence and second sentence of Article 67(1), the use of Incoterms and its relationship with CISG, the meaning of risk and handing over of the goods, the concept of the first carrier, whether the carrier should be an independent entity, whether the forwarding agency is included into the carrier, whether the signing of the transport contract and insurance contract affects the passing of the risk, and the method of specifying of unascertained goods. I have had the opportunity to look at each issue through actual cases in each country. I look forward to providing clearer guidance in the interpretation of Article 67 of the CISG taking note of this trend of relevant national precedents.
  • 5.

    Comparative Research on the Arbitrability of the Maritime Disputes Focusing on the Seaman’s Claim

    Kim, Yong Eui | 2019, (25) | pp.123~137 | number of Cited : 0
    Abstract
    Maritime legal matters require varieties of specialties in terms of its transactional context and thus the same in resolution of the disputes arising out of the transactions. More often times the disputes are resolved through arbitration rather than litigation at courts. Arbitration of commercial maritime disputes is a seaworthy forum particularly before a tribunal of marine experts such as the SMA in US or KCAB (more specifically APMAC) in Korea. Despite the so-called general trend of pro-arbitration in maritime disputes, personal injury arbitrations called for in a seaman’s employment contract are still barred by the FAA in US. However, in US, some vessel owners are creating arbitration opportunities by advancing new arguments to avoid statutory preclusion and to replace such antiquated notion as the ward of admiralty doctrine with current realities. This conflict between pro-arbitration notion and policy and the statutory limitation on the arbitrability of seaman’s claim is a very important point the Korean legal system to take a look at. Where there is not yet such a conflict occurring as a legal issue in Korea, it is suggested that Korean jurisprudence should pay more attention to the commercial nature of the arbitration as a vehicle when it works for the dispute resolution under the employment contract where one party is usually a commercial entity and the other is a lay person and try to find the better solution of the disputes between the employers and the seaman who is situated all the time in a harsh and dangerous working environment. In sum, it is strongly suggested in Korea as well that the pre-claim or pre-injury arbitration agreement between an employer and a seaman should be barred from arbitration under certain relevant circumstances.
  • 6.

    Various Methods of Investor-State Dispute Settlement

    Se-In Lee | 2019, (25) | pp.139~162 | number of Cited : 2
    Abstract
    This article explains different methods of Investor-State Dispute Settlement (ISDS), focusing on the investor-state disputes brought against the government of the Republic of Korea. Although some Korean literatures explain as if ISDS is just one arbitration process, there are in fact various methods of ISDS such as negotiation, mediation, arbitration, and litigation. Even in arbitration, there are different methods depending on the arbitration rules and institutions selected by the parties. Most investment agreements between nations also allow investors to choose from multiple ISDS methods including arbitration, mediation and litigation. There have been eight investor-state arbitration cases brought against Korean government as of March, 2019. First three cases were brought as ICSID arbitration, and the later five cases were brought as arbitration by UNCITRAL arbitration rules. The investors who filed the second and the third ICSID cases in 2012 and 2015 also brought direct legal actions against Korean tax authority in Korean national courts. Concerning these two cases, it should be noted although most investment agreements between nations do not allow the same investor-state dispute to be brought both to arbitration and to litigation, there are some exceptions such as a suit for injunctive interim relief. It is important for law practitioners to understand the characteristics of different methods of ISDS and make appropriate strategies to deal with them. Also for Korean government, it is necessary to carefully consider which methods of ISDS to provide at the time of negotiating investment agreements.