Korean | English

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

2020 KCI Impact Factor : 0.22
Home > Explore Content > All Issues > Article List

2020, Vol., No.30

  • 1.

    Research on the Chinese system of the transformation copying under the background of 3D printing

    FANG YONGNAN | ZHANG LU | 2020, (30) | pp.1~20 | number of Cited : 0
    Abstract
    3D printing technology has great prospects for development,which brings the problem of the transformation copying because it involves the transformation between the text,the plane and the three-dimensional. The transformation copying is a special case of copying, which brings great challenges to originality standards. The main contents of 3D printing involving the transformation copying systems include the copying from text to two-dimensional copying, and coping between two-dimensional and three-dimensional. Depending on the way of conversion and the nature of the original work, the nature of the CAD model, printed matter, and conversion behavior is also different.China put too little emphasis on ransformation copying, so there is no clearly define about the transformation copying in law, and there are also some limitations in the production of the virtual characters、 the architectural works and the works of applied art. Looking to the future,we hope a change and a new plateau to the transformation copying in china legal system, including the transformation copying be clearly defined,and the perfect protection of special objects.
  • 2.

    A Study on the Improvement of Zombie Enterprises’ Bankruptcy Expenses Advance Payment System

    LU DAIFU | PENG ZHIQIANG | 2020, (30) | pp.21~45 | number of Cited : 0
    Abstract
    China's development being still in an important period of strategic opportunities for optimization and upgrading of its economic structure, it is necessary to clear out “zombie enterprises” characterized by financial loss, blood-sucking and kidnapping so as to guarantee the order of competition in socialist market economy. Bankruptcy liquidation is the main method for the disposal of “zombie enterprises” as provided by law. However, the legal system of “stakeholders’ advance payment of bankruptcy expenses” has certain limitations, i.e., ineffective guarantee of bankruptcy expenses of “zombie enterprises” and unsuccessful exit from the market by a large number of “zombie enterprises”, resulting in ineffective and irrational allocation of market resources, and impediment of optimization and upgrading of economic structure. The realistic need in solving the above problems requires the establishment of a ocial special fund for the payment of bankruptcy expenses for “zombie enterprises”. At the same time, we need to strengthen procedures for budgeting and final accounting of bankruptcy expenses on the one hand; and tighten administrators’ duty of diligence and care on the other hand, so as to continue to commence or go through bankruptcy procedures for public interest of the society, fully protect the legitimate rights and interests of stakeholders in bankruptcy cases, and maintain social fairness and normal order of market competition.
  • 3.

    The concept criteria of the raw materials for foreign exchange earnings that are exempted from, and the imported raw materials that are subject to, the requirement to mark the origin of the materials

    SONG KWANHO | 2020, (30) | pp.47~73 | number of Cited : 0
    Abstract
    Although importation of raw materials for foreign exchange earnings doesn’t require compliance with the requirement to mark origin of such materials, exemption from the regulation requires such materials to be first on the list of raw materials approved for importation. An importer seeking exemption also needs to obtain approval for importation from the head of a relevant agency authorized by the Minister of Trade, Industry and Energy and fulfill certain obligations such as making actual foreign exchange earnings within the required time period. Without complying with the requirements, an importer of raw materials who intends to use such materials for domestic market cannot be entitled to exemption from the duty to mark the origin of raw materials. The central issue is not whether an importer ultimately exported goods after using imported raw materials. If the importer did not obtain approval for importation of raw materials for foreign exchange earnings, but imported the materials by following general import procedures, he/she cannot benefit from the exemption because such materials could not be considered as the materials for foreign exchange earnings. Otherwise, the importer’s activity would determine whether the trader is subject to the requirement to mark the origin of the materials, which would defeat the purpose of the regulation. If an imported material is used as a component and raw material for manufacturing that results in substantial transformation, it would be exempted from the requirement to mark the origin of the materials. Such application is consistent with the purpose of the decree because if the semi-manufactured goods undergo further production, manufacturing and processing which lead to substantial transformation, such goods would be labelled as domestically produced goods and therefore marking of the origin of the equipment and raw materials used in such goods wouldn’t be required. However, in the judgment case being reviewed in this paper, the duty to mark origin had to still apply because the imported materials were subject to only simple processing works instead of manufacturing activities that substantially transform the goods and give essential characteristics to the goods. If an importer fails to fulfill the duty to mark origin when only simple processing works need to be carried out in the Republic of Korea, he/she should be subject to criminal punishment and penalties for the violation of the Foreign Trade Act. The traders and distributors of imported goods in the judgment case examined in this paper therefore had to be criminally punished for their breach of the duty to mark origin under the Foreign Trade Act. In addition to addressing the issues in the aforementioned court decision, this paper also explores other court decisions where the duty to mark origin was more accurately interpreted and enforced.
  • 4.

    Research on Cross-border data Flow regulation system - Focus on China's legislation and response -

    CHEN DAPENG | 2020, (30) | pp.75~103 | number of Cited : 0
    Abstract
    The regulation of cross-border data flow has developed for more than 30 years, and two regulatory systems led by the European Union and the United States have been evolved. The differences between the two regulatory systems in terms of historical traditions, legislative purposes, and regulatory paths make the global governance of cross-border data flows a difficult problem. But even so, the United States and Europe have compromised and merged with each other. The “Safe Harbor Agreement” and the “Privacy Shield Agreement” signed have opened windows for international cooperation and provided a good reference for data legislation in other countries. In recent years, China has strengthened legislation on cross-border data flow. It is important to learn from European and American experience and adhere to the legislation and supervision concepts of “data security protection” and “promoting data utilization” simultaneously. The development and utilization of data should be used to promote data security, and to ensure the development and utilization of data and development of the industry with data security. At the same time, it is necessary to increase the level of corporate compliance, promote corporate self-discipline, actively carry out international cooperation, participate in the formulation of international rules, and explore the possibility of joining the cross-border data flow control system led by the US and Europe.
  • 5.

    Legal Review on Dispute Settlement Mechanism under the USMCA

    JunHa Kang | 2020, (30) | pp.105~129 | number of Cited : 0
    Abstract
    This study aims at analyzing the key features of USMCA Dispute Settlement Procedures. Based upon the merits of USMCA Dispute Settlement Procedures, this study expects more number of cases will be heard by USMCA arbitral panel. The reasons are as follows: First, USMCA streamlines the overall dispute procedures by removing the Free Trade Commission consultation process before panel procedures. Second, USMCA expands its jurisdiction over new issues including digital trade, state enterprises, and macroeconomic policy and exchange rate matters which are not subject to WTO DSU. Third, a number of cases may arise from the most complicated and stringent Rules of Origin of the USMCA. Finally, the complaining party is not likely to recourse to the WTO dispute settlement system which is now virtually paralyzed.
  • 6.

    Impact of CISG's contract avoidance paradigm under the revised Japanese Civil Code

    Gwak,Minhui | 2020, (30) | pp.131~178 | number of Cited : 0
    Abstract
    The United Nations Convention on Contracts for the International Sale of Goods (CISG) has been a comparatively successful treaty internationally since it was established in 1980. Based on the trend of intergration of the international trade oreder, along with the UNIDROIT Principles of International Commercial Contract(PICC) and the Principles of European Contracts Law(PECL) it also has a direct or indirect impact on domestic law. In fact, the fact that the CISG, PICC, PECL texts were very helpful in the 2004 and 2013 Korean Civil Code Amendment Proposals is of great significant. Recently, it was recognized that the system and content of CISG’s breach of contract had many influences even in the process of amending Japanese civil law, and actively reflected these international trends. Therefore, in this paper, I will look at how Japanese civil law, which had the same contents of contract termination discipline as Korean civil law, changed under the influence of CISG. In particular, this paper analyze the impact of legislation and the consequences of legislation, accepting the notion of material defaults in termination. Specifically, the discussion will focus on the following two issues. First, the amended law of Japan reconsidered the essence of the termination system, and as a result, eliminated negligence from the requirements for termination, as in CISG. Instead, the revised Japanese law introduced the concept of fundamental non-performance as a termination requirement. Secondly, in the case of force majeur, it is necessary to reset the relationship between the termination system and the risk-taking system for the deletion of the negligence requirement. On the other hand, the revised law of Japan established the risk system as a veto right like the Anglo-American law. As a result, the distinction between contract termination and the risk system is given, and the two systems are allowed to coexist. This has a different attitude from the CISG and is significant in that it constitutes a very unique legislation in the view of comparative law. In conclusion, the attitude of Japan’s revised civil law is very much on the issue of resolving issues of consistency with existing domestic legal systems, while accepting new paradigms derived from international legislation such as CISG. This paper examines the significant points in the discussion of Korean Civil Law revision by comparing the Japanese revised law with CIGS.
  • 7.

    A Function of the Extraterritorial Application Clause in the Korean Capital Markets Law: Focusing on the Applicable Law of Prospectus Liability in Cross-border Securities Offering

    Jong Hyeok Lee | 2020, (30) | pp.179~226 | number of Cited : 0
    Abstract
    When securities are offered to the public, a prospectus drawn up by an issuer should be distributed mainly by underwriters to investors in order for them to know the potential investment risks. Each country has its own capital markets law regulating a prospectus by way of promulgating administrative regulations, criminal punishment and civil liability to enforce a prospectus with accurate information to be drawn up and distributed so that investors are provided with accurate information on the issuer and the securities in question. In a case where an issuer is a foreign company and/or the market where securities are offered to the public is a foreign capital market, it is not certain whether the prospectus liability clause in the Korean capital markets law should be applied to those cases and which law should govern those cases. If a securities offering has foreign element(s), the applicable law on prospectus liability should be determined by the choice-of-law rules, irrespective of the extraterritorial application clause (Article 2) in the Korean capital markets law. Article 2 of the Korean capital markets law makes different roles respectively in civil liability, criminal responsibility and administrative restriction.
  • 8.

    Standards of Extraterritoriality of US Antitrust Law: Applying the US Supreme Court’s Analysis in RJR Nabisco to Foreign Component Cartels

    PARK, SEONUK | 2020, (30) | pp.227~262 | number of Cited : 0
    Abstract
    In a globalized market where supply chains grow longer, many products or components of those products are manufactured around the globe and all come together through layers of distribution to create the final product that ends up in the consumer’s hand. As a result, some of those parts may have been subject to a foreign cartel’s anticompetitive conduct, such as price-fixed costs. U.S. Congress enacted the Foreign Trade Antitrust Improvements Act (FTAIA) to have clarification of the Sherman Act’s scope. However, the ambiguity of the FTAIA has created considerable confusion among circuit courts. This uncertainty stems from courts’ differing interpretations of the application of the FTAIA in the context of foreign component cartel activity. Current law cautions against the extraterritorial application of federal statutes as reflected in the recent Supreme Court decision, RJR Nabisco v. European Community, which is instructive on the extraterritoriality and scope of other federal laws, including U.S. antitrust laws. The Seventh Circuit’s interpretations in Motorola are most in accord with the reasoning of the Supreme Court. The presumption against extraterritoriality is a principle that applies to all federal statutes and must be applied to each separate provision of a statute. Courts must look to the same two-step analysis outlined in RJR Nabisco, to determine the statute’s reach when the claim is a private right of action by a foreign plaintiff for recovery from foreign injury. The presumption is likely rebutted on the substantive provision if the effect meets the “direct, substantial, and reasonably foreseeable” requirement, however, the absent a domestic injury, the effect will not give rise to the plaintiff’s claim, barring recovery. American legal and precedent trends have implications for our legislation. The Korean Supreme Court presented only an abstract standard in judging whether or not to apply the Monopoly Regulation and Fair Trade Act (Korean competition law) in an international air cargo fuel surcharge cartel case, and thus failed to secure legal stability and clarity. The Korean Supreme Court and the Korean Fair Trade Commission, need to consider the restrictive effectiveness criteria that US courts use in judging extraterritorial application of the US antitrust law. In order to develop future policies related to fair trade and foreign trade, it is necessary to analyze the laws of the US antitrust law, which have been developed through precedents, based on the principles of effect theory and presumption against extraterritoriality of federal law.
  • 9.

    Interpretation and Application of Public Policy in Enforcement of Foreign Arbitral Awards in India: Comparison with the interpretation of Public Policy under the Civil Procedure Act

    Choung, Young-Hwan | SIDDHARTH SHUKLA | 2020, (30) | pp.263~286 | number of Cited : 1
    Abstract
    The purpose of this article is to identify the current issue of enforcement of the foreign arbitral award in India. For example, when a Korean corporation, that got a favorable outcome of arbitration in Seoul, file to enforce the award in India, the other party might resist the enforcement of the award in India, on the ground of public policy. In such a circumstance, the Indian judiciary might intervene in the arbitration process by its interpretation and application of the concept of public policy. Of course, we agree that, based on the New York convention Model law, each state ratified and enacted the arbitration law and each country’s judiciary has discretionary power to interpret and apply the notion of “public policy” or “good morals or social order.” However, the Indian judiciary slightly misleads us in understanding the application of “public policy” for enforcement of foreign arbitral awards in a series of cases. Therefore, this paper reviews this trend of cases regarding the historic development of “public policy.” Based on the Korean New Southern Policy, India could become the most important business partner in the 21st century. With the volume of trading between Korea and India on arise, it might be predicted that the number of legal disputes are also likely to increase. While the Indian judiciary is currently suffering from the huge backlog of pending cases, arbitration could be a good method to resolve disputes. However, the foreign arbitration award could be resisted in India based on the India “public policy” under section 48 of The Arbitration and Conciliation Act of 1996. After Korea and India ratified the New York Convention, each country made the Arbitration Acts based on this model law. In this model, section 5 provides an authority to review enforcement of foreign award within their territories based on the “public interest” or “public policy” or “good morals and other social order.” Also, the Korean judiciary could intervene on the recognition or execution of arbitral award based on “conflict with the good morals and other forms of the social order of the Republic of Korea” under section 39 of the Korean Arbitration Act. However, the Indian judiciary could intervene in the arbitration process of enforcement of foreign award depending upon of its interpreted the notion of “public policy” in a narrow or wide manner. Therefore, we request the India judiciary to provide stable interpretation and application of “public policy” for enforcement of foreign arbitral awards in India to reduce the intervention of India court in the arbitration process.