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

2020 KCI Impact Factor : 0.22
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2020, Vol., No.29

  • 1.

    On the Principle of Common Evidence in Chinese Civil Litigation

    Bao,Bing-Feng | WangYue | 2020, (29) | pp.1~26 | number of Cited : 0
    Abstract
    In recent years, in China's civil procedure, the traditional “family -oriented” and “non-lawsuit” litigation system has gradually transitioned to a litigant-dominated litigation system. The non-binding debating principle is moving towards the binding debating principle The rise of the third wave of procedural guarantee theory and its institutionalized reference is rising in the field of comparative law. But in judicial practice, Due to the lack of in-depth research on the legal basis of the common principle of evidence and the unified regulation of practical operation, Judges often go their own ways and fail to fully exercise the right of interpretation and inquiry, and fail to conduct typo logical analysis combined with the update of the theory of joint action, Therefore, causes to the party's surprise judgment, has harmed its entity interest and the procedure interest. Based on the previous theoretical research on the common principle of evidence, This paper makes a preliminary analysis of this problem by combining the theory of surprise judgment prevention and the overseas investigation of the type of joint action. Although it does not cover all types of cases, the core considerations are clear. The most cost-effective choice between respecting the psychological expectation of the parties and making full use of the litigation resources is also an inevitable result of the legal effect of the surprise judgment prevention theory in the application of the common principle of evidence.
  • 2.

    Legal Research on the Docking and Integration of Northeast Asia FTA and Tumen River FTZ under the Belt and Road Initiative

    Jin Xianglan | GAO JIN | Wang Yi Ning | 2020, (29) | pp.27~51 | number of Cited : 0
    Abstract
    For a long time, China has always adhered to the multilateral cooperation and opening-up attitude of promoting regional stability, development and win-win in the development of international and regional trade and economy. China's one belt, one road initiative is also required to strengthen cooperation in Northeast Asia and promote the convergence of FTA between Northeast Asia and Tumen River FTZ. With the close economic and trade exchanges among Northeast Asian countries, the hinterland of the Tumen River in China has become an important region for the cooperation and development of six Northeast Asian countries, including China, South Korea, North Korea, Mongolia, Russia and Japan. In the context of regional coordinated development, a good rule of law environment has become the necessary cornerstone of its development. China's one belt, one road initiative, and the analysis of the economic and trade cooperation between China and Northeast Asia, and the relevant laws and regulations, combing the rule of law in the Northeast Asian countries and the Tumen River region of China, puts forward a series of legal issues that need to be solved urgently in terms of the quality of legal culture, laws and regulations, and organizational structure. China's one belt, one road, is the basis for the study of the rule of law dilemma in the integration of Northeast Asia FTA and Tumen River FTZ. This paper explores the rule of law path to promote the integration of the two parties, and puts forward new models for institutional culture and talent training.
  • 3.

    Dispute Analysis and Reasonable Suggestion of THC

    SONG QI-MING | HUIQIN, ZHU | 2020, (29) | pp.53~68 | number of Cited : 0
    Abstract
    THC refers to the surcharge charged by the carrier from the shipper. In order to make up for the additional expenses incurred by the carrier from the container terminal to the ship's side, it has always been a very controversial issue. The problem of the collection of wharf operating fees in China also dates back to the 1980s. For China, the reduction of wharf operating fees can reduce the burden of Chinese import and export enterprises by about 4.6 billion every year. But at the same time, with the development of Chinese liner companies, wharf operating fees have greatly increased the income of Chinese liner companies, and increasing or reducing wharf operating fees will damage the entry and exit of China. The overall income of the mouth, the wharf operation fee is like a double-edged sword, so that the "establishment" and "reform" of the laws and regulations are in a dilemma. This paper discusses and analyzes the generation, background and rationality of wharf operating fee, and concludes that the collection of wharf operating fee is essentially a dispute between the interests of both ship and cargo, and should abide by the basic law of the market. at the same time, it is found that the charging standard of wharf operating fee in China is lack of standardization and transparency. Wharf operating fee is the product of the times and the result of the game between the two freighters. It has the rationality of the times and should continue to play the role of the market. Finally, on this basis, this paper puts forward some reasonable suggestions for collecting wharf operating fees. Speed up the improvement of shipping laws and regulations, at the same time draw lessons from domestic and foreign experience, deal with the relationship between the government and the market, for the collection and legal norms of wharf operating fees, continue to take the market as the leading factor, find problems and solve problems, the government should do its auxiliary normative role, so that the normative role of laws and regulations is more reasonable and fair.
  • 4.

    Regulation of Shareholder’s claims in International Investment Arbitration

    LEE, JAE WOO | 2020, (29) | pp.69~98 | number of Cited : 0
    Abstract
    Most investment treaties provide in its definition clause that the term investment includes shares in and stock, bonds and debentures of, and nay form of participation in, a company. Shareholders in companies can be harmed in two broadly different ways. First, they can suffer direct injury to their rights as a shareholder, such as the right to attend and vote at general meetings. Second, shareholders can suffer so-called ‘reflective loss’ through an injury to the company which usually cause the market value of the shares to decrease. Claims by company shareholders seeking damages from governments for reflective loss make up a substantial part of the ISDS cases. While governments have challenged these reflective loss claims in a number of cases, many ISDS arbitral tribunals have found that shareholders are entitled to recover for reflective loss in ISDS. Courts in advanced systems of national corporate law, however, generally reject shareholder claims for reflective loss for explicit policy reasons relating to consistency, avoidance of double recovery and judicial economy. Shareholders are permitted to bring cases for direct injury, but not for indirect injury(reflective loss). Only the directly-injured company can bring the claim. ISDS arbitrators have generally paid little attention to the policy consequences of allowing shareholder claims for reflective loss. They have considered it unnecessary to consider policy consequences because they think that the issue is resolved by the inclusion of shares in the investment definition. However, shareholder’s claim for reflective loss could give rise to multiple claims by multi-tiered shareholders and domestic company whose shares they have. Those multiple claims could possibly have risk of inconsistent awards and high costs. It might also prejudice the legitimate interests of creditors and other shareholders of the companies. In this context, this article suggests that the investment treaty introduce ‘derivative claim’ as provided in certain domestic laws and treaties. It can be initiated by controlling shareholder on behalf of companies and recovery of damages shall go to the company rather than to shareholder in order to ensure that double recovery for shareholders is avoided and the interests of other stakeholders in the company are duly protected.
  • 5.

    A Study on Personal Jurisdiction Regarding International E-Commerce in the European Union and the United Kingdom - With A Comparative Study with E-Commerce Jurisdiction in the United States -

    Kong Young John | 2020, (29) | pp.99~129 | number of Cited : 0
    Abstract PDF
    The E-commerce has become the norm in B2C transactions worldwide as many consumers prefer online shopping instead of direct purchases through local stores or retailers. However, a legal issues related to the Internet transactions can arise when the consumers in EU sue the Korean business entities in the EU courts—the issue being whether or not the forum courts in Europe can exercise the personal jurisdiction over the foreign defendants. It is important for the Korean corporations to understand the EU rules on the Internet personal jurisdiction such as the Brussels Regulation so that they can anticipate whether or not their business activities can be subject to lawsuits in EU and plan their corporate activities accordingly. First, defendants who are domiciled in an EU member state can be sued in the courts of their domiciles. In B2B transactions, the defendant can be sued not only at its domicile Member State but also at the place of performance of contractual obligation. The EU widely expanded the scope of the Internet personal jurisdiction with respect to consumer contracts because a consumer in B2C contracts can sue a defendant not only at the defendant’s domicile but also at the consumer’s domicile. The Brussels Regulation provides that personal jurisdiction over a defendant will be proper if the contract has been concluded with the defendant who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State. With the conclusion of the Brexit, it remains to be seen whether the UK will continue along the same line with the EU in terms of E-commerce and jurisdiction or take a new approach by establishing its own case laws. However, it appears that the UK will continue the strong stance in exercising E-commerce personal jurisdiction because of its aggressive consumer protection policy and of its intent to pursue continuity in following the EU’s approach in E-commerce. The US courts, in order to exercise personal jurisdiction, first examines whether the defendant had a “minimum contact” with the forum state and at the same time considers the “reasonableness” factors. And the US currently is employing the “targeting” approach regarding E-commerce personal jurisdiction in which the courts review whether the defendant purposefully or deliberately directed his online activity in a substantial way to the forum state. The “target” approach seems to be a better and fairer approach than the “pursuing or directing” test because first it closely examines the real intent and purposes behind the online business activities of the defendant corporations, and secondly the EU test of “pursuing or directing” activities seems to be so broad in its application that a lot of website activities—although they may not be intentional and deliberate—can be subject to the Internet jurisdiction of the EU which can hamper the E-commerce transactions in the EU market. Even though the EU recognizes forum selection clauses, it does not allow the forum selection clause in a B2C contract to be enforced unless such agreement is entered into after the dispute arises. The Korean businesses need to be mindful that the concept of “pursuing or directing” activities toward the EU Member States can be interpreted to be broad, making it difficult to be free from the imposition of personal jurisdiction in B2C transactions. Thus, it is more realistic to make efforts to reduce the lawsuits in a specific jurisdiction that the Korean companies wish to avoid by minimizing any online business activities that can be considered as “pursuing or directing” in the EU.
  • 6.

    Commentary on the 2019 Supreme Court Judgment that correctly applied Article 2(2) of the Private International Law Act: with a Focus on General Jurisdiction and Special Jurisdiction based upon Location of Property

    Suk, Kwang Hyun | 2020, (29) | pp.131~168 | number of Cited : 1
    Abstract
    In this article, the author comments on the Supreme Court judgment (“Judgment”) of June 13, 2019, Docket No. 2016Da33752. This is a rather unusual case in that the dispute was over whether the Korean courts have international jurisdiction over lawsuits between Chinese individuals. The first instance court denied Korea’s jurisdiction over the case, while the Appeal Court and the Supreme Court of Korea affirmed it. The author writes the present commentary because the Judgment deserves our attention in light of the following. First, the purpose of Article 2(2) of the Private International Law Act of Korea (“KPILA”) (Chapter III). Second, the international general jurisdiction taking into account the provisions of the Civil Procedure Act setting forth the generally-affiliating basis for venue (Chapter IV). Third, the requirements for the recognition of special jurisdiction based on the location of property in Korea (Chapter Ⅴ). Fourth, the meaning of predictability for lawsuit in Korea (Chapter VI). Fifth, the Judgment’s implication for the doctrine of forum non conveniens (Chapter Ⅶ). The Supreme Court of Korea (“KSC”) has rightly interpreted the meaning of Article 2(2) of the KPILA. In the Judgment, the KSC departed from the past attitude that adhered to the formula “venue rules = international jurisdiction rules” while giving equal value to all venue rules, and classified the venue rules of the Civil Procedure Act into (i) rules that can be used as international jurisdiction rules and (ii) those that can be used as international jurisdiction rules subject to modification. In addition, the KSC classified the general venue rules under Articles 2 and 3 of the KCPA as belonging to the former category, while classifying the special venue rules under Article 11 of the KCPA as belonging to the latter category, while making suggestions on to how to modify the latter. In the past, KSC judgments merely referred to Article 2(2) of the KPILA, and decided whether the case at hand has a substantial connection with Korea and whether Korean courts have international jurisdiction after only enumerating various factors of the case without actually considering the venue rules of the CPA, thereby violating Article 2(2) of the KPILA. In contrast, the Judgment correctly applies Article 2(2) of the KPILA and provides specific guidelines, and it is the first to do so among KSC judgments. The author welcomes the Judgment in that it is consistent with the view which the author has been suggesting. Pending the revision of the KPILA, the author truly hopes that the KSC will continue to render good judgments under Article 2(2) of the KPILA in the future, using the Judgment as a turning point.