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

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2019, Vol., No.27

  • 1.

    Review on the Contractual Incongruity Liability of Subcontract in Japanese Revised Civil Law

    SONG YOUNGMIN | 2019, (27) | pp.1~28 | number of Cited : 0
    Abstract
    Revised Japanese Civil Law adopted the legal character of warranty liability of trade as contractual liability theory, and changed the 「defect」 concept into 「contractual incongruity liability」 concept, and also it was admitted that the buyer has the rights to cure, compensation reduction claim, damage claim and contract cancellation as contractual incongruity liability of trade(Revised Civil Law Article 562~564). In addition, the subcontract has been applied to revised Civil Law article from 562 to 564 which established the buyer’s right on the contractual incongruity through the article 559, therefore there is no formality gap between trade contract and subcontract in warrant liability regulation of Japanese revised Civil Law by current revision. However, traditionally the subcontract is the contract that use other’s labor, and emphasizes the behavior of work completion. Trade and subcontract are both result debt, but subcontract needs precondition of behavior and trust relationship. In spite of traditional gap, contractual incongruity liability regulation of trade in revised Civil Law article 559 has been applied to subcontract. Revised Civil Law has problems as follows because of the traditional rule gap between subcontract and trade. First, in terms of the object defect, trade is 「seller’s the right to cure = repairing the object, delivering the substitute or delivering the shortage」, and subcontract has the character of 「subcontractor’s the right to cure = compensation claim」. Nevertheless, there needs to be examined that the former warranty liability regulation was deleted and regulated the trade equally in the form of equivalence. Second, in terms of the legal character of right of defect repair claim, the character of the right of defect repair claim is interpreted as transformation of the right to claim performance in revised Civil Law. That is to say, compensation claim should be exercised first, and then damage claim could be exercised if the repair would be impossible or not carried out within a certain period. It means to foretell some change on the former opinion about the character of defect repair claim in Japanese Civil Law. Third, in terms of cancellation system, imbalance problem between ‘notified cancellation’ and ‘not notified cancellation’ should be solved, and also the problem that the cancellation could be possible if the subcontractor has the attributable reason should be solved. There are various inherent issues including the problem through deleting the provision of existing Civil Law article 634, these are the tasks ahead to be settled.
  • 2.

    Modified Acceptance of the Principles ofInternational Contract Law

    PAK HYUNJUNG | 2019, (27) | pp.29~51 | number of Cited : 0
    Abstract
    In commercial dealings it often happens that the offeree, while signifying to the offeror its intention to accept the offer (“acknowledgement of order”), nevertheless includes in its declaration terms additional to or different from those of the offer. Most principles of international contract law provides that such a purported acceptance is as a rule to be considered a rejection of the offer and that it amounts to a counter-offer by the offeree, which the offeror may or may not accept either expressly or impliedly, e.g. by an act of performance. The principle according to which the acceptance must be the mirror image of the offer implies that even unimportant differences between the offer and the acceptance permit either party at a later stage to question the existence of the contract. In order to avoid such a result, which a party may well seek merely because market conditions have changed unfavourably, CISG, PICC or PECL provides for an exception to the general rule laid down in mirror image rule by stating that if the additional or modified terms contained in the acceptance do not “materially” alter the terms of the offer, the contract is concluded with those modifications unless the offeror objects without undue delay. What amounts to a “material” modification cannot be determined in the abstract but will depend on the circumstances of each case. Additional or different terms relating to the price or mode of payment, place and time of performance of a non-monetary obligation, the extent of one party’s liability to the other or the settlement of disputes, will normally, but need not necessarily, constitute a material modification of the offer. An important factor to be taken into account in this respect is whether the additional or different terms are commonly used in the trade sector concerned and therefore do not come as a surprise to the offeror.
  • 3.

    Chinese Procuratorial Organizations Filed Environmental Public Interest Litigation Procedures

    leejihaeng | SUNGAOANG | CHEN, JIA-JUN | 2019, (27) | pp.53~79 | number of Cited : 0
    Abstract
    Since the reform and opening up, China's economy has developed at a high speed, and people's living standards have been greatly improved. Simultaneously, we have also encountered an unprecedented crisis - environmental pollution and ecological damage. Environmental infringement cases are increasing, but subject to the limitations of traditional litigation directly affecting the plaintiff's qualifications. Many cases cannot enter the proceedings because the plaintiff does not qualify for prosecution, and the environmental public interest cannot be effectively protected. Therefore, it is necessary to break through in environmental public interest litigation. The limitations of the principle of direct interest have granted more qualifications to the main body of public interest litigation. In foreign countries, procuratorial organs can protect environmental public interests by filing environmental public interest litigation. Chinese procuratorial organs have also intervened in environmental public interest litigation and have achieved good social effects. Although they have been questioned because of lacking of clear legal basis for prosecution, these judicial practices can provide a good material for our research on environmental public interest litigation to improve China's environmental public interest litigation system. This paper mainly analyzes the relevant theories of environmental public interest litigation initiated by Chinese procuratorial organs, draws on the advanced experience of environmental public interest litigation by foreign procuratorial organs, and combines China's specific national conditions, and proposes to improve the Chinese public prosecution authorities' environmental public interest litigation system. It is suggested that the procuratorial organs should be given the qualifications for prosecution of environmental public interest litigation through legislation; only the procuratorial organs that have major environmental infringements endangering the interests of the public environment can initiate environmental public interest litigation; clarify the litigation status of the procuratorial organs in environmental public interest litigation; The procuratorial organ and the environmental protection public welfare organization shall give priority to the prosecution, set up the pre-litigation written notice procedure in the environmental civil public interest litigation, set the administrative reconsideration pre-procedure in the environmental administrative public interest litigation, and impose necessary restrictions on the procuratorial organ's disposition right. The statute of limitations method extends the period of limitation of litigation, and the establishment of an environmental public welfare fund to bear the relevant expenses in the litigation.
  • 4.

    Dispute Resolution Mechanism of Public-Private Partnership in China: Whither Arbitration?

    Dapeng Chen | yiyuchen | 2019, (27) | pp.81~111 | number of Cited : 0
    Abstract
    With the promotion of PPP in full swing in China, the promulgation of PPP's regulations, rules and policies is also in full swing. Among issues and conflicts in legislation and practice of PPP in China, dispute resolution mechanism is of urgency and importance since disputes will spring up as more projects launch and The Belt and Road Initiative spurs international PPP projects and ensuing disputes. This paper serves as the first step of my research scheme and focuses on the comprehensive dispute settlement mechanism of PPP project contract with attention to its arbitrability, holding that it is better to judge the arbitrability of a PPP dispute based on the nature of the dispute reasons. This paper also discusses the cause and situations of problems and gives suggestions as well as tells my direction of further work.
  • 5.

    The Study on the Legal Issues of the Overlapping Protection of Intellectual Property Rights

    GAO JINJUN | WANG, YANG | 2019, (27) | pp.113~134 | number of Cited : 0
    Abstract
    Under intellectual property rights government by law environment, each benefit main body, including intellectual property rights person, knowledge product user and disseminator all are authorized to seek and to obtain maximized the benefit, protect own right benefit to free from aggression or the hindrance. Commercialization highly along with the development of science and technology, the scope of intellectual property protection continues to expand. The same intellectual product often becomes the object of multiple intellectual property rights. The overlapping protection of copyright and trademark rights, copyright and design patent rights, trademark rights and design patent rights, intellectual property rights and anti-unfair competition have become increasingly prominent. One infringement violates two or more types at the same time. This paper combines theoretical analysis and practical cases, On the basis of distinguishing the concept of overlapping protection of intellectual property rights and similar legal concepts, it summarizes several important legal issues in the field of overlapping protection of intellectual property rights, and the main situation of overlapping claims. The legal issues about the main situation of overlapping claims, the independence of claims, and the compensation for damages were sorted out. Through this paper, the legal issues and practical operations of the overlapping protection of intellectual property rights are clear and lay the foundation for further exploration and research.
  • 6.

    Research on the Liability of Directors of Bankrupt Companies to Creditors

    ZHUANG, XIAOXIAO | HUIQIN, ZHU | 2019, (27) | pp.135~157 | number of Cited : 0
    Abstract
    With the development of economy and the progress of society, the corporate governance structure has changed from “shareholder meeting centralism” to “board of directors centralism”, and the rights of directors have been further strengthened. Bankruptcy is an important part of the process from establishment to extinction of a company. Corporate bankruptcy will bring about multiple responsibilities. How to pursue responsibility and who to pursue responsibility should be concerned. There are different views on directors' responsibility. Corporate governance theory, creditor protection theory and directors' obligation theory reflect the necessity of directors' responsibility to creditors from different angles. China's Enterprise Bankruptcy Law stipulates the content of “legal liability”, which provides a basis for the recovery of corporate bankruptcy. However, due to the adoption of the independent corporate personality system in China, the company has an independent legal personality, and directors only bear limited liability, which allows directors to abuse their power at will, and ultimately. The company assumes responsibility independently from the outside world, and the creditor's own remedy is deficient, so the law of China needs to protect the creditor's interests. In a word, China's bankruptcy system is not perfect at present. There are still various problems that can not be ignored in the regulation of directors' behavior, the system and the accountability mechanism. Through the analysis of these problems, this paper puts forward some countermeasures and solutions to standardize directors' behavior and improve the relevant legal system.
  • 7.

    Effects of CISG on the Principles of Asian Contracts Law

    BYUN WOOJOO | 2019, (27) | pp.159~181 | number of Cited : 0
    Abstract
    The fact that the law applied to cross-border transactions varies from country to country is a hindrance to the smooth development of transactions in that under the traditional ‘Conflict of Law’, one of the laws enacted by each country is designated as the Governing Law. The work for ‘global reunification of the judicial system’ which began in the early 20th century to eliminate such obstacles, has become more active in the 21st century as globalization advances. In particular, there is not much need for a unified statute concerning on the unique customs and family order based on the unique history and culture of each country. On the other hand, the requirement or need for common norms on the statute of international transactions based on the perception of the need for an economic community is gradually growing. Then it is necessary to examine the need to draw common principles on judicial unification, among others on the 'contract law' and the existence of substantial demand in the Asian region. The appearance of international transactions is achieved through contract as the most efficient means of realizing private autonomy, and furthermore, through the guarantee of freedom in contract, the promotion of competition and the establishment of a fair competition system are directed toward the development of free market order. In this process, if a unified contract law as a common norm across East Asia is established, the marketability of the Asian region will further improve, thereby allowing it to stay ahead in competition with other economic blocs. This paper will examine the performance of PACL so far and review future tasks. Among PACLs, the work on defaulting, in which it is set to precede a public announcement, has also deepened the common understanding among researchers to some extent through several PACL forums. In comparison, it can be said that discussions on general rules, including the formation of a contract, are still less complete. Here, in particular, I would like to expect the completion of the PACL in the future through comparison with the CISG as a general or common law that is generally accepted worldwide to resolve disputes arising in international trade relations.