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

2020 KCI Impact Factor : 0.22
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2020, Vol., No.31

  • 1.

    Legal Regulation of Arbitration Clauses in Cross-border E-commerce Browse-wrap Contracts

    XIANGSHU LIU | JUNYA ZHANG | 2020, (31) | pp.1~26 | number of Cited : 0
    Abstract
    Cross-border e-commerce platforms generally set arbitration as a channel for dispute resolution. In format contracts such as browse-wrap contracts, the extensive application of unfair arbitration clauses has left Chinese consumers to bear the risks of frequently losing the lawsuits. Since the rules for format clauses such as the consent regulation, the obligation of prompting explanation, and the principle of obvious unfairness have been inadequately supplied, it has left much room for referees, causing the confusion of judicial application. Apparently, the arbitration clauses have been abused by the operators to pre-allocate interests and evade judicial risks, which have caused damages to the legitimate rights and interests of consumers. In order to better protect the of consumer’s legitimate rights and interests under new technologies, relevant legislation should take account of the important role browse-wrap contracts in economic development. Therefore, it should be made clear that on cross-border e-commerce websites where the hyperlink contracts are set, the element of concurrence of both parties should be “informed consent”, the formal regulation of notification obligation such as “red hand rule” should be adopted to regulate the platform, and the cases of unfair standard arbitration clauses should be clearly set.
  • 2.

    A Study on the Standard for Interpretation of Trade Usage in the International Trade - focusing on Art. 9 CISG -

    O, Seog-Ung | 2020, (31) | pp.27~54 | number of Cited : 1
    Abstract
    A trade usage may be defined as a general or at least widespread regular observance of a particular line of conduct amongst those engaged in a particular branch of international trade. It has always played an important role in international sales. Traders and business people around the world constantly rely upon trade usages across avariety of industries. “The United Nations Convention on Contracts for the International Sale of Goods (CISG) expressly deals with trade usages and business practices under Article 9. It allows for the application of usages to which the parties have agreed as well as those that the parties merely “ought to” have known would apply. The CISG addresses only their applicability(Art. 4 a); thus the validity of usages is governed by applicable domestic law. Under Art. 9(1), the parties are bound by any usage to which they have agreed and by practices that the parties have established. The CISG does not define ‘usage’ and ‘practice’. Art. 9(1) unlike Art. 9(2) does not require that a usage be internationally accepted in order to be binding; thus the parties are bound by local usages to which they have agreed as much as by international usages. Practice is established by a course of dealing that creates an expectation that this conduct will be continued By virtue of Art. 9(2), parties to an international sales contract may be bound by a trade usage even in the absence of an affirmative agreement thereto, provided the parties “knew or ought to have known” of the usage and the usage is one that, in international trade, “is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned.” The purpose of this paper is to study the value and scope of the usages and practices as a regulatory source of contracts for the international sale of goods under the framework of the 1980 United Nations Convention.
  • 3.

    On the judicial trust in the age of artificial intelligence and the way to realize it

    ZHAO YANG | WANG FENGYE | 2020, (31) | pp.55~74 | number of Cited : 0
    Abstract
    with the rapid development of artificial intelligence, a series of profound changes have taken place in the traditional judicial field, such as judges’ judgment and decision-making modes, litigation process and trial modes, judicial personnel's setting and composition structure. In the era of artificial intelligence, judicial decision may become the result of the common decision of human beings and computer systems, and the basis of the application of judgment is the general experience of judges. The traditional litigation process and regional trial modes are turning to a new Internet trial era marked by electronization and digitalization. In the era of artificial intelligence, the changes in the judicial field are fundamentally conducive to improving the judicial efficiency, and the public's trust in judicial judgment has also increased, but the essence of judicial trust has not changed fundamentally, which is still the trust to human beings and judges, not the trust to technology and machines. The first reason is that technology can not achieve the perception of justice; secondly, technology can not reflect the social value orientation; finally, technology can not predict future changes. In addition, the technology itself has potential risks and inherent defects. Therefore, it is different from the path of realizing judicial trust relying solely on system construction, the realization of judicial trust in the era of artificial intelligence should follow the path of complementary construction of technology and system. Technology and system should be promoted in integrating. The core feature of the path of technology and system matching is establishing a new Internet trial mechanism that conforms to the laws of Internet technology development and judicial laws. By establishing the access rules and application rules of artificial intelligence in the trial field, and promoting the construction of intelligent justice actively, we can realize the modernization of the judicial system and judicial capacity, and then enhance the public's trust in judges and their judicial capacity. The key problem should be solved is how to avoid and prevent the various risks attached to the application of technology in justice through the top-level design of the system. In a word, the development of technology has changed the face of human justice, but the trust of human nature has not changed. Human beings believe that artificial intelligence will be domesticated as an effective tool to improve social equity and justice if they make good use of their own wisdom and rationality.
  • 4.

    In the New Situation the Integration and Improvement of the Law from Chinese Foreign Investment Law

    YU YONGLONG | CHO DONG JE | 2020, (31) | pp.75~100 | number of Cited : 0
    Abstract
    There is a close relationship between party policy and law, The promulgation of “Chinese Foreign Investment Law” is the result of the integration of the previous legislative achievements, and successful policies for attracting foreign investment to meet the needs of further opening up ,and attracting foreign investment under the guidance of the Communist Party of China policy. Chinese Foreign Investment Law introduced China’s foreign-funded basic laws and complied with China’s foreign investment legal system to keep pace with the times and improvement and objective requirements for development.The implementation of pre-entry national treatment plus negative list management system for foreign investment means a fundamental change in China’s foreign investment management system; using legal means to ensure the stability, transparency and predictability of foreign investment policies will further boost foreign investment in China. The confidence of the market will provide a more powerful rule of law guarantee for further opening up to the outside world and actively and effectively utilize foreign capital under the new situation. It will also promote a higher level of openness and regulation on the legal level, and have laws to follow, and promote the institutional development of open mode.
  • 5.

    A Study on the Application of the Current LMO Act to the Synthetic Biology-applied LMOs

    Ryu, Ye-ri | 2020, (31) | pp.101~119 | number of Cited : 1
    Abstract
    In the 2000s, international environmental conventions and international organizations have been paying attention to the concept and scope of synthetic biology. The concept and scope of synthetic biology determine the legal nature and status of synthetic biology applied LMO. In addition, domestic and international laws to govern this will be redefined. Furthermore, the content of laws and regulations that will be applied to synthetic biology applied LMO will have a direct or indirect effect on the development of the bio industry. Therefore, it is no easy task to reach an international consensus on the concept and scope of synthetic biology and the legal nature and legal status of synthetic biology-applied LMOs. Therefore, this paper first examines the concept and scope of LMO applied in synthetic biology, and tries to establish its legal nature and legal status. The concept and scope of synthetic biology have not been clearly established internationally, and the potential risks of synthetic biology-applied LMOs have not been scientifically proven. Nevertheless, based on the previous research, this paper is going to examine the applicability of risk assessment, risk assessment and risk management in the current LMO act, taking into account the adverse effects of synthetic biology-applied LMO on human and biodiversity based on a precautionary approach.
  • 6.

    On the Patentability of Artificial Intelligence:a review of recent cases from the U.S.

    Cho Hee Kyung | 2020, (31) | pp.123~152 | number of Cited : 0
    Abstract
    As new developments in the field such as neural networks and machine learning have transformed the expectations of AI technology and what it may be capable of, the importance of AI grows exponentially not only in industrial and commercial spheres but also in educational, social and even cultural spheres of our society. Given the importance of AI technology, it follows that the inventors and those involved in the commercialization of the technology would want to protect and exploit the economic value of the technology to its full extent. Obtaining a patent is still one of the most fundamental tools in protecting the economic value of an invention by reserving its exclusive rights to the owner of the patent. However, due to the recent tightening of the requirements in the field of patent law regarding the question of patent-eligibility, it is not entirely clear whether and to what extent AI technology could be patentable. The decision by the U.S. Supreme Court in Alice v CLS Bank and subsequent decisions by the Court of Appeals for Federal Circuit (CAFC) have cast doubt on whether patents that have already been issued for AI satisfy the new tests for patent eligibility and it is difficult to predict with any certainty whether new patent applications in these technologies could satisfy the requirements for patent eligibility due to the fact that these requirements are still in the process of evolution. The traditionally accepted incentive theory would indicate that a strong patent system is the foundation for strong innovation and provides motivation to inventors and offers a known mechanism to evaluate potential returns to potential investors. Although the recent cases have introduced a real element of uncertainty into the system, this will eventually diminish with an accrual of case law through evolving court decisions, and even perhaps new legislation. In the meantime, however, inventors and investors still need to be able to protect their AI technology with patents, even though patents may not necessarily offer a foolproof or ironclad protection they may once seemed to hold out, while knowing that the system was never a guarantee of any value in the invention. This article provides a review of the recent decisions by the courts in the US, including the Federal Circuit on the issue of patentability of AI technology in order to draw out some guidance regarding how inventors and investors should approach this question.