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pISSN : 2982-5903 / eISSN : 2982-5946

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2021, Vol., No.35

  • 1.

    Recognition in lieu of Designation of Applicable Law in Private International Law: Discussion in the European Union and Implications for Korean Law

    Suk, Kwang Hyun | 2021, (35) | pp.1~66 | number of Cited : 5
    The task of private international law is to resolve conflicts of legal orders that arise in legal relationships with foreign elements. Its main themes are first, the determination of international jurisdiction, second, the designation of applicable law, and third, the recognition and enforcement of judgments made by foreign courts. Since the second topic deals with the designation of law applicable to a certain legal relationship or legal issue, that area of private international law (i.e., private international law in its narrow sense) is also called “referral norms (Verweisungsnorm)”. In recent years, however, the concept of recognition of legal situations created in foreign countries without control over the applicable law has spread in the European Union. This is an issue which arose upon the impact of the “country-of-origin principle”, initially created with public law obligations under the EU’s primary law and the e-commerce guidelines in mind, on private international law. This is called “recognition of legal situations” or “recognition in lieu of designation of applicable law”. In other words, the issue is whether recognition of legal situations is a new method of private international law that replaces or supplements the designation of applicable law as a method of resolving conflicts of norms. In this regard, the vested rights theory derived from Huber of the 17th century Dutch school is receiving new attention. In particular, the EU Court of Justice has, in the two areas of private international law concerning name and company, derived the principle of recognition of legal situations created in other Member States from the fundamental freedoms under the primary law (Rome Treaty and TFEU). As a phenomenon resulting from the restrictions imposed on the sovereignty of the Member States in the course of their transition from independent countries to members of the legal community of the European Union, recognition of legal situations is reminiscent of the Full Faith and Credit Clause of the US Constitution, and we also need to monitor the future progress further. In this article, the author deals with several issues in the following order: the traditional methods for resolving international conflicts of norms (Chapter Ⅱ), the recognition of legal situations discussed in the European Union (Chapter Ⅲ), a historical review of the vested rights theory (Chapter Ⅳ) and the European academia’s responses to the recognition of legal situations (Chapter Ⅴ), the examples of private international law rules adopting the recognition of legal situations principle (Chapter Ⅵ), the meaning and implications of the recognition of legal situations for Korean private international law (Chapter Ⅶ), and concluding remarks (Chapter Ⅷ). These discussions provide us with an opportunity not only to understand recent changes of private international law of the European Union which is at the root of Korean private international law, but also to revisit the basic structure of Korean private international law and to find implications for Korean private international law. In addition, by examining Huber’s theory focusing on sovereignty and comity and the vested rights theory, we can better understand the elaborate logical structure of private international law and the value of historical analysis in its study. Unlike in the European Union where a multi-layered system applies, in Korea, where there is no external high-level norm, in principle, designation of the applicable law is appropriate. However, as seen in the Hague Adoption Convention, the jurisprudence of recognition of the legal situation can be introduced through international norms within a limited range such as those on personal status. In addition, although legal situations created in a foreign country that are contrary to the applicable law designated by the Korean Private International Law Act may not be recognized in Korea, the author submits there may be room for an exception if insisting on such a conclusion will lead to unfair results violating the Constitution and human rights law of Korea.
  • 2.

    Taxation of cross-border e-commerce in China and suggestions on collection and management

    CUI LONGZHE , JIN YULIANG | 2021, (35) | pp.67~83 | number of Cited : 0
    Since 2014, China's cross-border e-commerce has ushered in explosive development, constantly going deep into all aspects of people's daily life and providing convenience for people's life. When China sees the contribution of cross-border e-commerce to economic development, it should also pay attention to the tax problems brought by cross-border e-commerce. This problem mainly includes: in cross-border e-commerce transactions, enterprises set up virtual business institutions and places, resulting in unclear judgment standards for tax subjects; In cross-border e-commerce transactions, due to the trend of digitization and virtualization of goods, the qualitative classification standard of enterprise income is not clear, and it is difficult to classify enterprise income qualitatively; And because cross-border e-commerce is a new thing, the original tax management model lags behind. By combining the relevant legal provisions of China's enterprise income tax law and the tax collection and administration law, and analyzing the characteristics of China's cross-border e-commerce at present, this paper puts forward relevant suggestions on the tax problems of cross-border e-commerce: in view of the unclear judgment standard of tax subject, it is necessary to introduce the concept of real or virtual subject into the enterprise income tax law, Broaden the identification scope of enterprise institutions and places; In view of the unclear qualitative classification standard of enterprise income, it should be judged on the basis of the traditional qualitative classification standard of income, supplemented by the standards of contract type and transaction purpose; In view of the lag of the tax collection management mode, the tax registration system applicable to cross-border e-commerce should be stipulated and improved in the tax collection management law, the tax declaration system should be improved, and the legal liability should be strengthened.
  • 3.

    The Incoterms 2020 revision : Unsolved problems on FCA Rules

    Kim Hee-Jun | 2021, (35) | pp.85~101 | number of Cited : 0
    The Incoterms rules are well known throughout the whole world and they are the most commonly used trade terms by the parties, lawyers and courts. ICC updates the Incoterms rules almost every 10 years to reflect modern commercial practice. The latest version of the ICC Incoterms 2020 entered into force on 1 January 2020. The 2020 revision made several significant modifications to the earlier terms. Incoterms 2020 now provides for an additional option. Buyer and seller may instruct the carrier to issue a bill of lading to the seller after loading the goods, and the seller may agree that it is obligated to bid the bill of lading to the buyer, usually through the bank. In this article, the author briefly reviews the revisions of Incoterms 2020 and examines unsolved problems on FCA rule. Examining the reasons for the revision disclosed by ICC, it is doubtful whether they are properly understanding the reality of L/C transactions on FCA.
  • 4.

    A Study on International Issues Related to Intellectual Property Rights and Protection Measures in synthetic biology

    Ryu, Ye-ri , JOMIRA | 2021, (35) | pp.103~127 | number of Cited : 0
    In the 2000s, discussions began on the role of intellectual property rights in synthetic biology, known as the further development of modern biotechnology. Synthetic biology is rapidly developing with the development of bioinformatics and computer software. Biotechnology and computer software are already struggling with existing patent systems, but synthetic biology that combines both fields will face greater challenges. In fact, there is no doubt that products using synthetic biology and core technologies of synthetic biology are subject to intellectual property rights. However, there is much controversy over whether “discovered” or “synthesized” genes, DNA sequences, and organisms using genetic scissors are protected by intellectual property rights. Therefore, this paper focuses on the concept of synthetic biology, which is discussed in the Convention on Biodiversity, and then examines the types and contents of intellectual property protection in synthetic biology. In addition, this study intends to consider whether it is appropriate to minimize intellectual property rights, to maximize the invention, or to seek a third method for the development of the domestic synthetic biology industry.
  • 5.

    Research on the China's Patent Open Licensing System in the Era of the Fourth Industrial Revolution

    HWANG SEONYEONG , Xu Chun Mei | 2021, (35) | pp.129~157 | number of Cited : 0
    Abstract PDF
    The era of the Fourth Industrial Revolution,although patent and license transactions are increasing day by day in China, the actual patent execution rate is not high. China introduced a patent open licensing system to promote patent management and reduce transaction costs for patent holders. From the perspective of the licensed person, the demand and supply of patents increase as the disclosed patents can be used reasonably and conveniently without paying for licenses, and as the entire patent transaction process is simplified, it has the advantage of reducing transaction costs, raising patent conversion rates, and improving productivity by promoting patent management. From the perspective of companies, technology can be improved at low cost, and as it acts as an important opportunity to strengthen core competitiveness, it is predicted that it will contribute greatly to promoting the exchange of information on science and technology in China and improving the level of science. China's patent open licensing system was designed according to market mechanisms but there are still shortcomings in the scope of licensing entities attracting patent holders dispute resolution mechanisms and intelligent services. Therefore it is necessary to prepare countermeasures for providing incentives to attract patent holders establishing a platform specializing in patent opening expanding intelligent services and granting administrative adjudication authority over patent disputes so that the patent open licensing system can be well established in China.
  • 6.

    Study on Compliance of Cross-Border Transfer of Corporate Data Following the launch of China's “3 Acts Regarding to Data”

    CHEN DAPENG , CUI JIEJIE | 2021, (35) | pp.159~198 | number of Cited : 1
    With the data economy’s burst growth, especially digital trade, restrictions on cross-border data transfer are being reinforced by countries around the world. However, the objectives of migration policies in different countries determine the differences in their strictness and specific restrictions. For example, to set target policies to ensure security of data sovereignty and network, only strict limits can be imposed on data cross-border migration. According to these policy objectives, the scope of data required to be stored and supervised and managed is also larger, which will get much negative effect on the operation of the enterprise. It’s necessary to probe into the enterprise business solutions and technical methods and propose a law compliance program. In contrast, setting citizens' personal information protection' policy goals not only retains more exceptions and legal transfer channels, but also only involves personal data. Enterprises can choose the appropriate legal channels according to their own needs. According to the Data Security Law implemented in September 2012, the Personal Information Protection Law implemented in November and the Cyber Security Law promulgated in 2017, it can be predicted that China will impose strict restrictions on cross-border data of enterprises. In the process of formulating the above-mentioned “Three Data Laws”, although the legislative experience of the United States and Europe was fully used for reference, the cross-border migration of enterprise data brought great obstacles due to over-emphasis on data sovereignty and national security. At the same time, the digital economy based on the Internet not only needs to use digital technology to develop product technologies, but also to ensure a new information circulation order through a worldwide network. Under the background of a new economic model that transcends existing time and space, China should Think about how to balance data security and digital industry development. In order to solve these problems and protect corporate data by setting corporate data rights, it is necessary to modify the individual laws related to data, actively participate in international cooperation, and ensuring the order of cross-border data transfer is also a good way.
  • 7.

    The Scope of Expropriation Exception under the United States Foreign Sovereign Immunities Act

    Young-Ran Choi | 2021, (35) | pp.199~226 | number of Cited : 0
    In 2021, the United State Supreme Court in Federal Republic of Germany v. Philipp ruled on expropriation exception of the Foreign Sovereign Immunities Act and the domestic takings rule. The FSIA confers a U.S. court jurisdiction over a foreign government if the government expropriated property in violation of international law. The domestic takings rule assumes that what a country does to property belonging to its own citizens within its own borders is not the subject of international law. The Court concluded that taking property of a foreign government’s own nationals shall not be regarded as an expropriation exception even though the expropriation was conducted as genocide. This ruling abrogated previous rulings of lower courts which did not apply the domestic takings rule in case of genocide. This recent decision probably severely affects any pending or potential lawsuits to obtain jurisdiction over the perpetrators of atrocious crimes against humanity including the Nazi and the Imperial Japanese government before or during World War II. This paper looks over the FSIA’s development, relevant provisions of immunity and exceptions to the jurisdictional immunity. Focusing on the discussion on expropriation exception, the paper reviews the genocide exception and the domestic takings rule.