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

2020 KCI Impact Factor : 0.22
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2021, Vol., No.33

  • 1.

    A Comparative Study on the Export Control System of Strategic Items between Korea and Japan - Focused on Major Issues Related to Trade Conflicts between Two Countries -

    Choi, Dong Jun | 2021, (33) | pp.1~42 | number of Cited : 0
    Abstract
    The conflict between South Korea and Japan over the strategic export control system, which began in July 2019, is still ongoing. The Japanese government converted the three major strategic items which are the core materials of semiconductors and displays from being subjects to comprehensive export permission to subjects to individual export permission, and excluded Korea from the White List Country Group for a reason of Korea's poor operation of strategic items. In response, the South Korean government also responded by excluding Japan from the preferred countries in terms of reciprocity. The conflict between South Korea and Japan, with the fact that these two countries play a leading role and have the Asia's longest history in export control systems, by joining four export control systems, the Wassenaar Arrangement(WA), the Nuclear Suppliers Group(NSG), the Australian Group(AG), and the Missile Technology Control Regime(MTCR), and all three non-proliferation treaties, the Treaty on the Non-Proliferation of Nuclear Weapons(NPT), the Biological Weapons Convention (BWC), and the Chemical Weapons Convention(CWC), is never desirable for the world peace and the development of the two countries, and should be resolved as soon as possible. In this respect, this study focused on major issues related to conflicts between Korea and Japan, including related laws and export control organizations, the List control, the Catch-all control, the Compliance Program, and sanctions against North Korea. The main points of the analysis are as follows. First of all, Korea enforces four laws, including the Foreign Trade Act, while Japan implements a unified legal system under the Foreign Exchange and Foreign Trade Act(FEFTA) and regulations thereunder. And while Korea distributes the management of strategic items to various ministries, including the Ministry of Trade, Industry and Energy, in consideration of the matter of an organization, Japan operates the export control system under the general management of the Ministry of Economy and Industry (METI). Both Korea and Japan accept designated items by the international export control systems, and export permissions are more subdivided in Japan's comprehensive export permissions in the List control. And, in the Catch-all control, Korea uses more strict control methods with the ‘inform control’, the ‘know control’, and the ‘suspect control’ than Japan's methods of the ‘inform control’ and the ‘know control.’ The constituents of the Compliance Program(CP) is almost identical between the two countries, including organization, regulation, education, and audit, but Japan is showing a more active and wider operation. And the sanctions against North Korea are being operated basically in coordination with the United Nations and the United States regarding North Korea's nuclear, missile development and launch. And, despite the conflict with Japan, Korea established a trade security organization in the Ministry of Trade, Industry and Energy in April 2020, and, in June of the same year, revised the Strategic Goods Import and Export Notice, eliminating the possibility of interpretation that “WMD, etc.” do not include conventional weapons, and clarified the basis for the Catch-all control for conventional weapons(Article 2, No. 15). This study examined issues under international law related to trade conflicts between the two countries through a comparative analysis of the export control system of strategic items between Korea and Japan. According to the analysis, Korea and Japan had little difference in operating the systems at the Asia's highest level in terms of managing strategic items and maintaining laws and systems to comply with relevant international laws, and were fulfilling their obligations well in domestic laws. Therefore, it is hard to deny that non-system factors are involved in the conflict between the two countries rather than the strategic items system itself. A more active political and diplomatic approach will be needed at the government level. Also, since international law is a field where there are risks of various interpretations that can be abused in the process of pursuing national interests for legal justification, it would be good to use this experience as an opportunity to thoroughly prepare for sensitive issues under international law at the national level for the future legal disputes.
  • 2.

    The Resale Royalty Right of EU and Legislation for the introduction into our copyright law.

    Choi, Sang Pil | 2021, (33) | pp.43~64 | number of Cited : 0
    Abstract
    In Europe, where the Resale Royalty Right is already settled, if an art dealer or auctioneer is involved as an acquirer, seller or broker in relation to the resale of the original artwork, the seller is required to pay a certain amount of the resale price to the author, but In Korea the Resale Royalty Right has not been introduced yet. The introduction of the Resale Royalty Right has the advantage of ensuring the economic benefits of artists and their descendants to some extent depending on their protection period. However, in Korea, which has a different artistic environment from Europe, the hasty introduction of the Resale Royalty Right could further dampen the art auction market, which could worsen the artist's profit structure and cause a outflow of domestic capital. Nevertheless, rather than unconditionally hesitating to introduce the Resale Royalty Right due to these negative aspects, it is desirable to seek legislation of the right to compensate for shortcomings and maximize advantages through active discussions. Consequently, in this work, a legislative proposal was presented to add new and detailed regulations on the Resale Royalty Right to our copyright law by referring to foreign precedents and analyzing strengths and weaknesses.
  • 3.

    Acquisition in good faith of real estate im german Civil-Code

    JANG BYEONGIL | 2021, (33) | pp.65~88 | number of Cited : 0
    Abstract
    The institution for bona fide acquisition is recognized not in real estate but only in the movable asset in Korean Civil Code. On the contrary the institution for acquisition in good faith of real estate is approved in German Civil Code. Real estate registration credibility plays an important role in both legal system. The Register of Real Estate is not just a record of any type of property. It is only possible to meet with a very large financial means. Accordingly, the appearance of the right, i.e.; it is highly necessary to attribute assumptions and trustworthiness to them and make them a very useful means for the transaction. Therefore, the adjustment of that function will be very important, if there's a lot of difference according to the possibility of untrueness or not, These ideas are contained in Articles 891, 892, and 893 of the German Civil Code(BGB). The effects of it are so diverse and free, it brings a very large economic ripple effect. The starting point of these regulations is the untrueness of registration, i.e.; It begins with something inconsistent with the true legal situation, and then its legal status is vested in him, if it corresponds to what is stated in the Register of Real Estate in the transactions by legal act. Like this, germany recognizes the institution for acquisition in good faith of real estate when certain requirements are met. It has resulted the enomous expansion of the circulation potential in real estate and related rights. We also need to come up with legal measures to enable an expanded economic environment.
  • 4.

    Definition of “Serious Difficulties in Operation and Management” in the Chinese Company Law

    Zhang Zhenbao | 진빙 | 2021, (33) | pp.89~110 | number of Cited : 0
    Abstract
    Company is a common form of economic organization. In order to maintain the operation of the company and protect the interests of creditors, various countries have made clear and strict restrictions on the establishment, merger, division, dissolution, liquidation and other activities of the company in the legislative practice of the relevant laws of the company, so as to avoid the obstruction and damage to the development of the company caused by negative factors and arbitrary judicial acts, and then destroy the economic operation and healthy development of the whole society. Among them, the relevant laws and legislations of various countries and regions are particularly cautious about the reasons for the dissolution of the company, in addition to providing for the dissolution of the company due to its own reasons and administrative acts, it also includes requesting the court to dissolve the company. Article 182 of China's Company Law clearly stipulates the request for the court to dissolve the company, this paper will discuss the judicial authorities' prudent intervention in the company's business activities as stipulated in Article 182 of China's Company Law. Firstly, it describes the current situation of China's Company Law; Then, it explains the legal provisions and problems in the application of the current articles 180 and 182 of China's Company Law on the dissolution of a company; After that, it points out the problems existing in Article 182 of China's Company Law; Finally, the paper puts forward some suggestions to improve the existing problems in Article 182 of China's Company Law.
  • 5.

    Legal Discussion on Patent Licensing Authorization Model in Chinese Patent Securitization

    徐春梅 | CHO DONG JE | 2021, (33) | pp.111~138 | number of Cited : 0
    Abstract
    With the development of intellectual property rights, more and more people are aware of patent rights, from “Patents are wealth” to “Property-owned patents are wealth” to “Patent rights that can realize value transformation is wealth”. In addition to providing powerful protection for patents, there should be sufficient channels to utilize patent rights, both in terms of scientific and technological output and value transformation. Overall, this is necessary to realize the social and economic benefits of patent rights and simulate the driving force of innovation and expand the power source of creativity. Patent securitization is an innovative approach to transform the value of patent rights. In particular, as a financial way to effectively promote the transformation of scientific and technological achievements, patent securitization has unique advantages in promoting science and technology-linked financial system. In the past two decades, under the guidance of Chinese policies and regarding the experience and practice of securitization in developed countries, several patent securitization models have been effectively spawned. Based on the first patent-only securitization pilot case in China, we try to explore the feasibility of legislation for securitization of patents through the patent licensing authorization model. Under the perfect policy system and institutional arrangement, patent securitization has the following important significance: it can improve the efficiency of the value of enterprise patent assets, broaden the enterprise financing channels, realize the diversification and convenience of enterprise financing, and ease the financing pressure. According to the discussion of the first patent-only securitization pilot case in China, the article concludes that if China have sufficient patent assets and perform adequate risk evaluation, and to have a perfect policy system and the legal system as a guarantee, and the legislation of patent securitization can be carried out in the model of patent licensing authorization.
  • 6.

    Unfairness In the Trade position abuse in Korean competition law

    SHON, DONGHWAN | 2021, (33) | pp.139~174 | number of Cited : 0
    Abstract
    There are 3 standards in judging the illegality against unfair trade behavior in Korean competition law. The Supreme court has made verdicts from the point of open standards including the anti-competitiveness and unfairness where considered the totality of circumstances test. The Supreme court made a meaningful verdict in the Nambu golf club case about trade-position-abuse which is one of the unfair trade practice. This follows as that unfair trade behavior regulation in the fair-trade-law is just concerned from the view of public law, that trade-position- abuse is forbidden just where it has something with transaction order and that trade- position-abuse against consumers can be judged illegal where the abuse affects a lot of consumers and would-be consumers as the abuse-effect influences the transaction order. This precedent is important where it draws the standard line about illegality in trade position abuse. This precedent seems to be affected by Japanese fair trade commission’s guide line. This can be categorized as the anti- competitiveness standard. It can restrict the span of competition law's appliance in terms of public and private enforcement. It is found that civil law cases has denied the application of fair trade law quoting this precedent. It can be suggested that effects against consumers standard can be enlarged by considering the quality-baed competition not just by quantity-based competition. Considering the strict interpretation of Korean competition law and effective enforcement of the law this precedent’s standard should be restricted and not be expanded to other sphere of unfair behavior regulation.