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

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2021, Vol., No.33

  • 1.

    UNCITRAL Model Law on Recognition and Enforcement of Insolvency-Related Judgments of 2018

    Suk, Kwang Hyun | 2021, (33) | pp.1~52 | number of Cited : 4
    Abstract
    The “Debtor Rehabilitation and Bankruptcy Act” (“DRBA”) of Korea, which came into force on April 1, 2006, follows the modified universality principle by receiving the “Model Law on Cross-Border Insolvency” (“MLCBI”) adopted in 1997 by UNCITRAL. However, as for the effect of recognition, the DRBA was greatly influenced by the so-called Recognition Assistance Act of Japan, which went into effect in April 2001. The MLCBI regulates the recognition of foreign insolvency proceedings, but not the recognition and enforcement of insolvency-related judgments (“IJ”) issued after the decision commencing the insolvency proceedings. As a result, legal uncertainty had arisen over the recognition and enforcement of IJs. Accordingly, UNCITRAL adopted the “Model Law on Recognition and Enforcement of Insolvency-Related Judgments” (“MLIJ”) in July 2018, which purports to facilitate international cooperation by providing a straight-forward and harmonized procedure for the recognition and enforcement of IJs. Therefore, Koreans now ought to consider whether and how to receive the MLIJ. In this article, the contents of the MLIJ are reviewed, and the concrete order of discussion is as follows: First, IJs which are the subject of recognition (Chapter II), second, requirements for recognition of IJs (Chapter III), third, procedures of recognition of IJs (Chapter IV), fourth, effect of recognition of IJs (Chapter Ⅴ), fifth, enforcement of IJs (Chapter VI) and sixth, meaning of Article X of the MLIJ (Chapter VII). According to the MLIJ, if certain requirements are met, the courts of the recognizing State must recognize and enforce IJs of foreign courts where there are no grounds for refusal. Procedurally, according to the MLIJ, a court of a recognizing State can make a decision on recognition after receiving an application for recognition of a foreign IJ (this decision is binding upon other courts of the receiving State), but if the issue of recognition of an IJ is raised as an incidental question, the court dealing with the principal question can recognize the IJ without a separate decision to recognize the IJ. As for the MLIJ, Korea has three options. The first option is to follow the logic of the Supreme Court of Korea of 2010 which held that the rehabilitation plan of a debtor confirmed by the Federal Bankruptcy Court of the United States can be recognized in Korea pursuant to Article 217 of the Civil Procedure Act, and the second option is to follow the recognition of insolvency proceedings under the MLCBI and the assistance based thereon (the practice of the federal bankruptcy courts of the US and the view the author supports). The third option is to receive the MLIJ. According to the first and second options, there is no need to receive the MLIJ. Under the third option, there are the following alternatives: first, a plan to allow the selective application of the second option (by introducing Article X), and second, a plan to exclude the second option and allowing only the third option (by excluding Article X). When Korea receives the MLIJ, it will be necessary to clarify the relationship between the MLIJ (excluding Article X) and Article X.
  • 2.

    On the Statement of the Parties in Chinese Civil Litigation

    Bao,Bing-Feng | Mao, Jia-Jing | 2021, (33) | pp.53~76 | number of Cited : 0
    Abstract
    The litigants play two roles in civil litigation, that is, litigation subject and evidence method. Correspondingly, the party's statement can be divided into the litigant's statement of the subject of action and the party's statement of evidential significance. Because China has not distinguished the two kinds of Party statements for a long time, the evidential value of the parties' statements has not been fully developed. In China's civil litigation, as an independent form of evidence, the function of the statement of the parties is dormant due to the contradiction of the relevant provisions in the legislation. Therefore, it is necessary to modify and improve the relevant provisions from the legislation to form a complete set of party statement system to fully activate its evidence function, so as to change the current situation of the marginalization of the party's statement in the civil evidence system, and get the application of judicial practice on the track of justification under the guidance of norms.
  • 3.

    Developments of Case Law in English Common Law Countries on International Construction Demand Guarantees - including Doctrine of Unconscionability -

    SOHN, KYUNG HAN | SungKyu Choi | 2021, (33) | pp.77~115 | number of Cited : 0
    Abstract
    Demand guarantee is widely used in international construction contracts and ship building contracts. However, if the claim guarantee is abused, it will hurt the debtor's liquidity and credit, while depriving the beneficiary of the demand guarantee's rights will also hurt the beneficiary's liquidity. There are many cases in which the law on compliance with construction contracts and demand guarantees is made into English law or the law of English law countries, so it is necessary to review the case and the development of legal principles. We examine the use cases of demand guarantees in international construction and review the development of British and British law-based countries, especially Singapore, on the requirements for demand guarantees, the independent abstractness of demand guarantees and their exceptions, the parties to the prohibition of payment to demand guarantees, and the requirements for the prohibition of payment to demand guarantees. It is necessary to fully understand and cope with the obligations of the right to comply with the law, mainly from the standpoint of a construction company or a shipbuilding company that is a client of a demand guarantee, and that the beneficiary or guarantee bank shall be subject to a payment ban or provisional disposition on the beneficiary or guarantee bank upon claim of the deposit. Unconscionable conduct is well recognized in Singaporean and Australian jurisdictions as a ground for restraining the beneficiary calling under an on-demand guarantee. An on-demand guarantee is provided by an issuer to guarantee that the applicant will meet obligations owed to the beneficiary. Since Singapore Court of Appeal tends to recognized the exclusion clauses of the doctrine of unconscionability from the restriction of the demand guarantee calling, the contractor should allow the doctrine of unconscionability as limited as possible for those who are the beneficiary of the demand guarantee.
  • 4.

    Issues Concerning the Identification of Copyright Infringement of Fan Fiction and Suggestions for improvement - Japan as a reference -

    LI-ZENGJIE | YU-YONGLONG | 2021, (33) | pp.117~138 | number of Cited : 0
    Abstract
    With the rapid development of Fan Fiction all over the world, the influence it brings has become more and more obvious. The essence of Fan Fiction is the audience's constant revisiting of the text, the audience's imagination of the original work, and the interpretation of the original work from multiple angles. In recent years, the rise of various online platforms such as forums and novel websites has prompted a large number of fans The dissemination of works on the Internet, at the same time, in the modern development process of Fan Fiction, unlike the early Fan Fiction that are only for communication and appreciation, it continues to show its unique commercial value. The unique characteristics of Fan Fiction are different from the original works. The contradiction has become more prominent, and the conflict of interest between the two has become more distinct. While Fan Fiction bring huge benefits to the cultural industry, a series of copyright infringement issues should also be noted. Due to the lack of clear regulations on Fan Fiction in my country's current copyright law, fan creation is often in a gray area, and infringement cases occur frequently. This article first discusses the concept, classification and nature of Fan Fiction; secondly, by analyzing the two cases of Jin Yong v. Jiangnan and Xuan Ting Company v. Zhang Muye for copyright infringement and unfair competition, the current copyright infringement of Fan Fiction in China The current situation is described, and then the problems existing in the identification of copyright infringement are summarized. When the author defines the infringement standards of Fan Fiction, the author mainly discusses the four aspects of deductive works, fair use system, unfair competition, and the dichotomy of thought and expression. , And by comparing the infringement of Fan Fiction in Japan, summed up the enlightenment to our country, and learn from Japan’s experience; finally, it is proposed to clarify the status of Fan Fiction in law, expand the scope of the fair use system, and distinguish the substantive nature of different types of Fan Fiction Similar standards are used to improve the recommendations for identification of copyright infringements of Fan Fiction.
  • 5.

    The Special Features and Key Issues in Energy Sector Arbitration - Focusing on Yukos Arbitration Cases -

    Kim, Yong Eui | 2021, (33) | pp.139~164 | number of Cited : 0
    Abstract
    The transactions in the energy sector (mostly the traditional fossil energy related, excluding the solar, nuclear, or other alternative energy) are characterized as big scale, international, and complex ones and the parties thereto are also mostly global corporations. The contents of the transactions are also in big scale, global, and complex in such areas as the development and mining of the energy resources, production, and distribution of the energy-based goods. Viewing the disputes in the energy sector upon the categories thereof, it can be classified as the dispute between a state and another state, the dispute between a company and a state, the dispute between a company and another company, and the dispute between a company and an individual. The method of resolving the dispute is different according to the above stated type of disputes. This article analyzed the special features and key contents of the arbitration in energy sector regarding the jurisdiction, procedure, governing law and the enforcement of the decision taking the Yukos case as a key example for the purpose of making more empirical analysis. Since the Korean corporations are also making big overseas investments for the energy resources and lots of transactions with global energy corporations, the analysis and descriptions made in this article can be a good reference and help to prevent disputes in advance and to resolve the existing disputes arising out of the energy sector, being a useful information and guides to the researchers and practicing lawyers in this field as well.
  • 6.

    Domestic Application of Indirection Expropriation Provisions in International Investment Law

    KIM YUN-IL | SHIM YOUNGGYOO | KWON HAN-YONG | 2021, (33) | pp.165~206 | number of Cited : 0
    Abstract
    Since the concept of regulatory expropriation originally developed under U.S. case law has been adopted as the concept of indirect expropriation under international investment law, the recently concluded bilateral and multilateral investment agreements have increasingly introduced the investor-state dispute settlement (ISDS) clause with indirect expropriation as the cause of the claim. The 「Korea-US Free Trade Agreement」 (Korea-US FTA), reflecting this trend, has also introduced these provisions of indirect expropriation and ISDS in the Investment Chapter (Chapter 11: Investment). Therefore, in the future, where Korea becomes a litigation party in an ISDS case of which indirect expropriation is the cause of the claim, it is essential to understand the legal principles concerning the criteria and scope of indirect expropriation. This is because the legal consequences of an ISDS litigation which indirect expropriation is the cause of the claim will be very different according to the applied criteria and scope for recognizing indirect expropriation, such as being regarded as compensable indirect expropriation or a non-compensable regulatory measure. As for the criteria for recognizing indirect expropriation under the international investment law, ‘effectiveness test’, ‘purpose test,’ and ‘proportionality test’ have traditionally been established based on arbitration jurisprudence. Among these various standards, arbitral tribunals have mostly adopted ‘proportionality test’ in recent arbitration cases of indirect expropriation, and it is gaining a lot of persuasion. Accordingly, it is necessary to comprehensively review and analyze related theories and major arbitral awards under the international investment law, particularly focusing on the ‘proportionality test’ that has recently become mainstream. Meanwhile, many concerns have been raised in the process of signing the Korea-US FTA because it is not clear whether Korea’s constitution and legal system are appropriate for domestically applying the indirect expropriation and ISDS clauses, or whether major national policies such as real estate policies can be regarded as legitimate regulatory measures under the standards for recognizing indirect expropriation including ‘proportionality test’. In this aspect, this paper reviewed and analyzed whether indirect expropriation provisions are domestically applicable under the Korean legal system and, if applicable, in which national policy areas they can be applied, and whether they are suitable for the ‘proportionality test’. Contrary to initial concerns, the ‘proportionality test’ for indirect expropriation is not unfamiliar to us, and it has already been reflected and applied as a ‘principle of proportionality’ through the judicial decisions of Constitutional Court or the Supreme Court regarding the major national policies, such as real estate policies including development restriction zones or long-term unexecuted urban planning facilities. Therefore, if Korea’s major domestic policies or measures are submitted to arbitration in an ISDS litigation of which indirect expropriation is the cause of the claim, the ‘principle of proportionality’ applied in domestic litigations should be actively and properly utilized in arbitration proceedings. In addition, legal and institutional revision and improvements should be continuously implemented for bridging the gap between the generally established law of indirect expropriation under the international investment law and Korea’s major domestic policies and measures.
  • 7.

    Research on contract change system in construction contracts - focusing on adjusting the contract amount due to design changes in the U.S.A -

    TAEKWAN KIM | 2021, (33) | pp.207~240 | number of Cited : 0
    Abstract
    In this treatise, we examined the doctrine of contract changes in US construction contracts, focusing on the change clauses. based on the contents, we critically examined the adjustment system of the contract amount of the design change in the domestic construction contract. the contents can be summarized as follows. First, it is necessary to reorganize the design change system for general conditions of construction contracts into a contract change system. the contract change system centered on the design document has the advantage of its clarity. however, it is not suitable for contract changes other than design documents, and there is an aspect that the original purpose of the contract change system of changing existing contracts based on the intention of the ordering party cannot be fully utilized. Second, it is necessary to set limits for contract changes. general conditions for construction contracts Article 46 stipulates that contracts should be canceled only when the contract amount is reduced or the construction period is extended, but more diverse and clear limits for contract changes are required. Third, it is necessary to establish new provisions regarding the doctrine of constructive change. court practice is so biased towards contract law theory that it is unable to offer a proper solution in areas where the constructive change doctrine must work. Fourth, it is necessary to realize the purpose of equitable adjustment in contract changes. this is because the general conditions of current construction contracts are that the scope of compensation is extremely limited.