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2014, Vol., No.62

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    A Study on the Problem of Political Power Structure under the Current Constitution

    KyungSu Sim | 2014, (62) | pp.23~54 | number of Cited : 4
    Abstract
    A voice of concern and self-examination has been raised over the existing Constitution of 1987, the focal points of which consist of the revival of the direct election system for presidency, the single term system for presidency for five years, the abolition of presidential power to dissolve the General Assembly, the revival of the investigative power of the General Assembly, and the revival of local self-governments. For example, there have been very active political discussions to overcome the abusiveness of imperial presidentship and to put the current out-of-control governing system back in order. The growing interest in constitutional amendment among the members of the National Assembly from both the ruling and opposition parties has a lot to do with the current political atmosphere. Unfortunately, a change in political regime has not led to the reduction of the acute political power struggles between ruling and opposition parties. A serious concern over the methods as to how to overcome this kind of political problem has resulted in the recent discussion for reformation and revision of power structure through constitutional amendments. A group of moderate congressmen who are tired of zero-sum confrontational political situation controlled by a group of extreme hardline congressmen from the ruling and opposition parties have raised their voices for constitutional amendment which reflects the current needs for political reformation discussed above. It seems that the overall framework for constitutional amendment has been set up to some extent. For instance, a problem of imperial presidentship in which a president has to control and manage all of the governing aspects will be attempted to be solved structurally by taking an approach to reach the truth through fact-finding rather than following political ideologies. The most common fundamental problem in the presidentship in the U.S. is how to maintain the ‘check and balance’ of powers between the president and Congress. In other words, this is a matter of how not to become imperial or dictatorial for the U.S. presidents while maintaining powerful control over the government. Accordingly, one of the important points for discussion on the constitutional amendment in Korea is to pursue the improvement of political cultures at the same time. In order for the government to function rightfully, it is so much important to pursue the improvement of political cultures which make up the infrastructure of government. Especially, the chronic vice of the political cultures in Korea is based on the following traditions: authoritarian conducts based on Confucian tradition; the unstability of politics of political parties; negative views on compromise due to the black-and-white reasoning; the extreme confrontation based on regionalism; and unreasonable and stubborn demands based on illegal cause. In order to make constitutionalism function adequately, overcoming these kinds of problems is a fundamental challenge. Especially, the improvement on political party system and electoral system must be revised to do so. The precedent examples of the U.S. which is the only successful model seems to provide Korea with a lot of points to learn. With the prospects of achieving the unification of Korea and the national per capita income of $40,000, multi-layered and complex approaches are necessary.
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    Study on Secularism as Constitutional Principle in the ECHR’s Case of Leyla Şahin v. Turkey

    Park ZinWan | 2014, (62) | pp.55~87 | number of Cited : 0
    Abstract
    Is it conform with the freedom of religion under Art. 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) that national university in Turkey prohibit student from wearing the Islamic headscarf through internal university rules. ECHR had made a judgment on this matter in the case of Leyla Şahin v. Turkey. ECHR had already taken a decision on the question of teacher’s wearing the Islamic headscarf in the case of Dahlab v. Switzerland. the about the question of teacher’s wearing the Islamic headscarf. The case of Leyla Şahin v. Turkey started in an application (no. 44774/98) lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) against the Republic of Turkey by a Turkish national, Ms Leyla Şahin (“the applicant”), on 21 July 1998. The applicant alleged that her rights and freedoms under Articles 8, 9, 10 and 14 of the Convention and Article 2 of Protocol No. 1 had been violated by regulations on wearing the Islamic headscarf in institutions of higher education. she as a medical student protested a Turkish law to order student not to wear the Islamic headscarf at universities and other educational and state institutions. The application was delivered to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). The Chamber found that the Istanbul University regulations limiting the right to wear the Islamic headscarf and the measures taken thereunder had interfered with the applicant’s right to manifest her religion. It went on to find that the interference was prescribed by law and pursued one of the legitimate aims set out in the second paragraph of Article 9 of the Convention. It was justified in principle and proportionate to the aims pursued and could therefore be regarded as having been “necessary in a democratic society”. In her request for a referral to the Grand Chamber dated 27 September 2004 and in her oral submissions at the hearing, the applicant challenged the reason on which the Chamber had concluded that there had been no violation of Article 9 of the Convention. In the judgment of the Grand Chamber the Court finds that the interference in issue was justified in principle and proportionate to the aim pursued and consequently, there has been no breach of Article 9 of the Convention, the first sentence of Article 2 of Protocol No. 1. and Articles 8, 10 or 14 of the Convention. The Court’ judgement was supported by 16 votes to 1.
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    Amendment of Prerequisite for Standing to Sue of a third party in Japanese Administrative Litigation Act and the Trend of Trial - Focusing on the comparison with precedents of Korea -

    Cholho Choi | 2014, (62) | pp.89~124 | number of Cited : 2
    Abstract
    Japan legislated factors to be considered in making a judgment on the standing to sue of a third party(a neighborhood resident etc) not the other party who was given an administrative disposition in the Clause 2 by amending the Article 9 of the Administrative Litigation Act in 2004. This study aims to examine how widely Japanese Supreme Court acknowledges standing to sue of a third party by reflecting considerations of Clause 2 of the Article 2 before amendment of the act, and makes a comparative review of the Supreme Court precedents on the scope of standing to sue of a third party in the administrative disposition in Korea with precedents of Japan based on the foregoing. Although Korea has a regulation on the standing to sue of a third party in the administrative disposition which is similar to Japan’s before amendment, the Supreme Court has already rendered a verdict that widely acknowledges standing to sue of a third party, suggesting a conclusion that amendment of regulation like Japan is considered unnecessary as a conclusion.
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    Legal Review of Taxation Support for the Small Income Earners

    KIM, NAM WOOK | 2014, (62) | pp.155~184 | number of Cited : 1
    Abstract
    Gap of economic income has been widening due to low birthrate and aging trends in our society and importance of consideration for the socially weak by the state has been enlarged. The state has executed social insurance, public assistance, and social welfare service to protect the socially weak from social threats such as disease, disability, aging, unemployment and death and improve the quality of life. Nevertheless, the small income earners don't emerge from poverty. Therefore, redistribution functions of income as well as fund raising by taxation should be strengthened to bridge the gap between the rich and poor and living like a human being on the Constitution should be guaranteed. This study examined the taxation support system on the current tax law including earned income tax credit for the small income earners and devised the extension of earned income tax credit, adequacy of the legislative support of taxation on the income earners, realization of assets and income, connection of earned income tax credit with social security administration law, tax revision of pension income, expansion of the basic pension income deduction, special tax for rural development for the formation of small income property tax exemption, and improvement methods of legal problems including creation of social welfare taxation.
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    An Evaluation of Amended Criminal Act on Sexual Assualt Crimes - Centered on Rape and Sexual intercourse -

    Sun Jong Soo | 2014, (62) | pp.185~210 | number of Cited : 10
    Abstract
    The amendments to the Criminal Act in 2012 have brought many changes in the sexual violence crimes. The definition of the subject of the crimes has changed from ‘woman’ to ‘person’, and Antragsdelikt, a category of offence where prosecution cannot be allowed without a complaint by the victim, has been abolished. Also, a new category of ‘like-rape’ has been established, and the provisions of the crime of obtaining sex under the false promises of marriage, which was found to be unconstitutional by the Constitutional Court in 2009, have been deleted. It was expected that the amendment of the subject of a rape in the Criminal Act would solve the possibilities of rapes in marriage as well as between the same sexes. However, despite of the change, the fact that a rape is considered to be an act of adultery in practice is becoming an obstacle to resolving the issue. In other words, because adultery is defined as a sexual intercourse between a man and a woman who are not marri! ed, the problem is that the rapes in the marriage and between the same sexes are not covered. It is related to how rape is defined. That is, the problem could be avoided if ‘rape,’ which is one of the requirements to establish a rape offence according to the Criminal Act, is redefined as an ‘act of sexual intercourse.’ Also, the amended Criminal Act on the sexual crimes could be positively evaluated in that heavier sentences would be meted out for a like-rape since it is a more serious criminal act than an indecent assault due to the fact that an act of forceful penetration is involved. However, what constitutes a like-rape is not clear-cut, and an amendment might be needed to resolve the issue. Also, it is true that the abolishment of the Antragsdelikt is a positive development, but there needs to be solutions for possible problems that could arise as a result, such as preventing the second and the third damaging effects on the victim that could occur during the trial proceedings. Finally, the Criminal Act is now structurally identical to the Special Act on Criminal Affairs Concerning Sexual Crimes as a result of these amendments; the problem is that the provisions for requirements for crimes are similar. This kind of problem could be fixed by streamlining the Special Act on Criminal Affairs.
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    Several Studies on Article 313, Paragraph (1) of the Criminal Procedure Act

    Lee, Chang-Sup | 2014, (62) | pp.211~240 | number of Cited : 13
    Abstract
    Article 313, Paragraph (1) of the Criminal Procedure Act provides that a statement which a defendant or any other person prepared outside the course of investigation and a document where their statements were recorded in the same situation is admissible as evidence if the following requirements are met. Firstly, a statement must be in their own handwriting or there must be a signature or a seal of the person having made a statement, that is to say the original stater on the statement and the document. Secondly, the authenticity of the statement’s or the document’s formation must be proven by the statement of the original stater at the date of a trial preparation or a trial. Exceptionally, a document where a defendant’s statement was recorded is admissible as evidence only if the authenticity of the document’s formation is proven by the statement of the person having written the document at the date of a trial preparation or a trial and the statement of the defendant was made under particularly credible circumstances, in spite of the statement of the defendant at the date of a trial preparation or a trial. This statement of the defendant means the thing that denies the authenticity of the document’s formation.
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    Whether embezzlement established when return denial of borrowers who received a deposit of deposit payment made ​​by mistake of the third debtor occurred

    Lee, Seung-jun | 2014, (62) | pp.241~265 | number of Cited : 1
    Abstract
    Despite prohibition, whether the defendant have the right to receive compensation of land, deposit for payment based on the ownership is the starting point of the discussion of embezzlement. The spirit of the provisions of the Civil Execution Law is not on denial of the ownership itself but on the conservation of non-exempt property through foreclosure. Therefore, if the third debtor has made a deposit for payment, to admit the right to receive payment to the debtor is reasonable. Effect of the disposal ban is an essential effect of foreclosure, because only that in order to satisfy the monetary claims of creditors, prohibits the disposal of the debtor of the subject property, and to maintain its exchange value. Therefore, ownership of itself debtor admit, it can be understood by prohibiting the disposal. Deposit is, those depositors is at your own risk, it is determined whether the payment should be made to people in its own way, deposit for execution or enforcement, deposit for payment deposit. The judicial enforcement for deposit for execution applies equally to the deposit for payment. Then legal effect of deposit receipt of the accused does not change. As a result, the debtor who receives deposit for payment made ​​by the mistake of the third debtor, even refused to return the deposit money, embezzlement does not hold.
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    Eine Studie über die Entstehungzeitpunkt des Wohnungseigentums

    JANG BYEONGIL | 2014, (62) | pp.267~292 | number of Cited : 4
    Abstract
    Das Wohnungseigentum besteht aus dem Sondereigentums an der Wohnung und dem Dauernutzungsrecht am Grundstück. Inhalt des koreanischen Wohnungseigentumsrechts („Gesetz über die Eigentumsbegrüdung und die Verwaltung der Eigentumswohnung : KWEG)“ Nach §20 KWEG ist vorgeschrieben, dass das Sonderrecht ohne das Dauerwohnrecht (Dauernutzungsrecht) am Grundstück nicht veräußert werden kann. Dies Bestätigt die Rechtssprechung (2006.3.10. 2004Da742) ; in der oben genannten Vorschrift liegt der Zweck, die Trennung des Wohnungseigentums von Dauernutzungsrecht am Grundstück. Es geht weiter um die Begründung des Wohnungseigentums genauer darum, wann begründet das Wohnungseigtum werden kann? Dazu keine ausdrückliche Vorschrift wie §4 (1) WEG im KWEG. Infolgedessen wurde diese Lücke von der Rechtssprechung gefüllt. Nach der Rechtsprechung ((2006.11.9. 2004Da67691) war im Voraussetzung für die Entstehung des Wohnungseigentums zunächste früher die Registrierung im Gebäudekataster. Aber diese Rechtsprechung (2013.1.17. 2010da71578 ) hat sich geändert; d.h. das Wohnungeigentum kann sogar ohne die Registrierung im Gebäudekataster entstehen. Hier sind zwei Probleme. Erstens; Kann man die Registrierung im Gebäudekataster als Begründung öffentlichen Glauben ansehen wie die Eintragung in das Gebäudegrundbuch? Zweitens; Wird das Prinzip des Koreanischen Gesetzbuchs aufgehoben, dass bei der Übereignung von Immobilien diese in Grundbuch eintragen werden muss? Deswegen braucht die Entstehung des Wohnungseigentumsrechts als zusätzliche Voraussetzung die Eintragung in das Gebäudebuch. Dafür muss eine deutliche neue Vorschrift Rechtsklarheit schaffen.
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    A Study on the Changes of Family relations and the Responsibility of Fostering children as well as the Parental authority

    LEE JONG-KHIL | 2014, (62) | pp.293~329 | number of Cited : 2
    Abstract
    This article makes a study of the changes of Korean society and the disorganization of family relations, which are important subjects in Family Law. Especially in recent Korean society as the divorce increases, the minors are confronted with various dangers. Therefore in order to safeguard the children, we should make the better Civil act and Child welfare act ect.. Because of parents' divorce, their children are left in dangerous circumstances. In this paper I want to examine the methods how to safeguard their minor sons and daughters through the Civil act, judicial precedents and so on. The regulations in force of Civil act gives priority to the Family Court to determine the responsibility of fostering children or the parental authority. If parents intend to divorce, the fostering children or the parental authority shall be determined by deliberation between the parents. But if such an agreement cannot or would not be made, the Family Court can designate the person who is in charge of the responsibility of fostering children or the parental authority. When the parents get divorced, basically we have to consider ‘the best interest of child’ principle to safeguard children. At any case where the agreement harms children's welfare, the Family Court shall order correction or decide ex officio matters related to fostering, taking consideration of children's intention and age, each parents' financial status and other circumstances. Conclusionally I assert that the parental authority should be partially restricted or suspended, the other side the responsibility of fostering children is consolidated or reinforced for children's welfare.
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    Eine prüfende Untersuchung der Rechtsprechungen über die Anwendung der Verhandlungsmaxime

    황형모 | 2014, (62) | pp.331~365 | number of Cited : 4
    Abstract
    Die erste, primäre These der Verhandlungsmaxime als eines Hauptprinzips der Verhandlung im Zivilprozess besagt, dass nur diejenigen Tatsachen berücksichtigt werden dürfen, die von einer der Prozessparteien dargelegt worden sind. Uneinigkeiten in Rechtsprechungen und Lehre bestehen darüber, welche zu den Hauptsachen gehören und welche nicht, die einer solchen Darlegung bedürfen: Somit sind eine zusammenfassende Darstellung und eine vertiefende Untersuchung erforderlich. Sie müßten, im Grunde genommen, zusammen mit der Auseinandersetzung der Beweisbedürftigkeiten der Rechtsvorschriften, die Rechtsfolgen bestimmen, und der Untersuchung der Funktionen der Verhandlungsmaxime vorgenommen werden. Der Verfasser ist der Meinung, dass Rechtsgeschäfte durch Vertretung, grundlegende Tatsachen für Wertungen im allgemeinen Vorschriften, und Beginn einer Verjährungsfrist gehören zu den Hauptsachen, die nur unter Darlegung einer Prozesspartei berücksichtigt werden können. Tatsachen als Basis der Berechnung von entgangenem Gewinn bei persönlichen Schäden, Voraussetzungen des Mitverschuldens, Anwendung einer Rechtsvorschrift, Tatsachen über Verjährungsfristen können dagegen ohne, beziehungsweise gegen, Darlegung der Prozessparteien berücksichtigt werden. Jeweilige Verjähurngsfrist muss dargelegt werden, das Gericht bleibt jedoch an der Darlegung nicht gebunden. Obwohl das Gericht in diesen Fällen auch ohne Darlegung durch eine Prozesspartei Tatsachen anerkennen oder Rechtsvorschriften anwenden kann, je nach den Prozessvorgängen, wenn die andere Prozesspartei die von der Darlegung abweichenden Tatsachenanerkennung oder Rechtsanwendung erkennbar nicht vorhersehen kann, müßte die Partei, vom Gesichtpunkt des Überraschungsverbots und der Garantie der verfahrensrechtlichen Rechte aus, darauf hingewiesen werden und somit in der Lage sein, Meinungen zu äußern oder sich zu verteidigen: In diesen Fällen wäre eine von der Darlegung abweichenden Tatsachenanerkennung oder Rechtsanwendung ohne solche Hinweise unzulässig.
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    A Comparative Legal Study on the Civil Discovery of Governmental Documents

    Ji Won Park | 2014, (62) | pp.367~405 | number of Cited : 2
    Abstract
    In 2002, Korean Code of Civil Procedure(hereinafter, “KCCP”) s. 344 was amended (ⅰ) to exclude “the documents possessed by public entity, including Nation, local authority, and even public enterprise(hereinafter, “Government Documents”)” from the general duty of producing evidentiary documents, and (ⅱ) to leave it to complete discretion of public entity on whether to produce “documents containing official secrets(hereinafter, “Government Secret Documents”)”. As a result, the likelihood of documentary discovery from the public entity is almost denied in Korea. This legislative attitude was intended to harmonize KCCP and Korean Freedom of Information Act(hereinafter, “KFOIA”). However it is harshly criticized as a more excessive legislation than is needed to achieve legislative intent. In England, who keeps the documents is not a factor to determine the scope of documentary disclosure. What matters is the balancing of the public interest in the administration of justice and the public interest in maintaining the confidentiality of certain documents which may include governmental secrets. Furthermore, in 2001, Japanese Code of Civil Procedure(hereinafter, “JCCP”), which was very similar to KCCP, was amended to eliminate general exclusion of Government Documents, and add special procedure to hear the discoverability of Government Secret Documents. The legislations of both countries show us how to improve documentary discovery scheme in Korea. What is important is the contents of the documents rather than who is possessing them. Hence I suggest that the exception under KCCP 344 ② should be eliminated to create general duty to produce Government Documents. And I also suggest that the determination of discoverability of certain Government Secret Documents should not be on the discretion of the public entity holding them but on the Judiciary.
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    The legal effect of Rule 2 (a) of COLREG in Korean Legal System

    Cheong Yeong Seok | 2014, (62) | pp.407~431 | number of Cited : 0
    Abstract
    Rule 2 (a) of COLREG, 1972 provides that “nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case”. The Rules provides conduct of vessels to prevent collisions as an international convention to internationally unify rules on collisions regulations. COLREG, 1972 has the same effect as the domestic laws and therefore the same normative effect as the domestic laws since a ratified international convention has the same effect as the domestic law. However, it comes into question what the legal liability is in Rule 2 (a), and how to hold the offender liable since the Rules do not provide legal liability in detail. The Rules are criteria of negligence of the defender who is legally liable for the consequence of breach of the Rules since the Rules are conduct norm to be observed by ship operators to avoid collisions. But specific legal liability is decided by domestic laws of individual countries as the legal liability shall be provided differently in respect of criminal liability, administrative liability and civil liability. Rule 2 (a) of the Rules provides legal liability declaratorily without classifying the liability into criminal law, administrative law and civil law, so that Anglo-American law countries and civil law countries adopt the Rules comprehensively. Therefore, the subject of liability, the nature of liability and the requirements for liability are to be provided by domestic laws of individual countries. In the meantime, whilst the criminal liability and the civil liability are a matter of fault liability in connection with breach of the Rules by negligence, administrative liability has a nature of fault liability or strict liability depending on individual regulations. Responsibility would not be an issue in the disciplinary punishment on a licensed captain, marine officer or pilot since Responsibility is the premise for the issuance of licenses. The licenses would be cancelled on the grounds of disqualification if the license holder’s Responsibility becomes an issue in an incident(Article 6. 1. of Ship Personnel Act and Article 6. 2. of Pilotage Act).
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    Non-conformity of Goods in CISG

    Kim Bong Su | 2014, (62) | pp.433~459 | number of Cited : 3
    Abstract
    CISG is based on the “non-conformity”, the unitary conception that doesn’t ask the type and gravity of its defect. Which means, the CISG doesn’t consider the divergence of quality or quantity, delivery of aliud, wrong packing or other conditions when deciding the non-conformity, and this is separated from the gravity of defect. CISG Art. 35 defines the non-conformity of goods with 2 conditions; whether there is agreement about conditions of goods between the parties or not. This regulation states that the subjective standard shall be the first consideration when judging the non-conformity. Then the required quality of the contract contains the statement, representation and confirmation, let alone the promise the seller had to buyer. After this, the non-conformity shall be judged by the objective standard as follows; the fitness for ordinary purpose of goods among other items with the same descriptions, the fitness for particular purpose which was told to buyer when the contract was made, the correspondence of the goods with the sample or model which the seller demonstrated to buyer. There are some opposing opinions regarding the delivery of aliud, but it needs to be defined as non-conformity when considering the purpose of CISG and its Art.35. And Art. 38 and 39 stipulate the duty of buyer, who delivered the goods, to investigate and the duty to notify regarding the non-conformity. Korea civil code doesn’t have any regulation on the concept of deficiency and criteria, and treat with only theory and precedent. Since there are various views on the standard of defect and few discussion on the type of special defects, the definition of non-conformity of goods of CISG gives thoughts to us regarding the interpretation of Korean Civil Code and de lege ferenda.
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    Third Party Funding in Investor State Arbitration

    KIM DAEJUNG | 2014, (62) | pp.461~498 | number of Cited : 1
    Abstract
    Third Party Funding(TPF) is one of the new issues in international arbitration including investor state arbitration. Third party funding is financing by a third party of all costs of arbitral proceedings for one of the parties to a dispute, and the financing third party, or funder receives a certain percentage of the proceeds from the result of the final compensation. Final share the funder will receive can be based on a percentage of the final award, which varies between 15 to 50% of the recovery. If the claim fails, the financing third party will usually, receive no compensation. Main legal barriers are prohibition of maintenance champerty born in UK, which are prohibiting funding or providing of financial assistance to a holder of a claim, which allows the claim to be legally pursued when the funder or provider of financial assistance holds no connection or valid interest in the claim itself. In some main countries such as Australia, the UK, Germany and the US there is a trend of liberalization of prohibition of maintenance and champerty. In the landmark case of Forstif decision in Australia, the court granted legitimacy to TPF in Australia. In international investment arbitration, TPF trend does not appear to take main position except a few notable cases regarding cost allocation decision by arbitral tribunal and TPF withdrawal in ICSID cases. However, it seems likely to grow in the investment arbitration because it is attractive field for the funders due to investment arbitration's lucrativeness in its value. In a way, TPF can enhance access of justice to international arbitration including investor state arbitration. In international investment arbitration, the main concerns are the TPF's impact on the attorney-client relationship and the limit TPF imposes on amicable settlements, which in turn could lead to more litigation. For example, funder’s discontinuance of funding led to another litigation in S&T Oil Equipment and Machinery Ltd. v. Romania. Also it is not easy for third party funders to voluntarily disclose their involvement in the arbitral proceedings. In Ioannis Kardassopoulos and Ron Fuchs v. The Republic of Georgia the tribunal stated that there’s no principle why any third party financing agreement should be taken into consideration in determining the amount of recovery. There appear to be no such relevant rules of arbitral institutions requiring a party to disclose that it is funded. Nevertheless, it may be possible that a future arbitral tribunal may decide to extend jurisdiction over the funder under the non-signatory doctrine. It is clear that arbitral tribunals still do not have the jurisdiction or the power to invalidate a funding arrangement, unless the parties raise the funding agreement itself as a merits issue. It seems that major arbitration institutions such as ICSID, the UN Commission on International Trade Law (UNCITRAL) and the International Chamber of Commerce have the power to set up any rules, if possible.
  • 18.

    A Consideration on Consumer Protection and Sustainable Development in International Law - With Special Reference to the Protection of Consumer Interests and Sustainable Development in International Trade Law -

    SHIM YOUNGGYOO | 2014, (62) | pp.499~531 | number of Cited : 2
    Abstract
    Although the protection of consumer interests, particularly consumers’ fundamental and social interests, can contribute the so called “sustainable development” because the adequate protection of consumer interests will result in consumers’ sustainable consumption pattern which is regarded as an important factor for sustainable development, the issue of protection of consumer interests in international law has been overlooked. Therefore, the issue of protection of consumer interests in international law should be noted form the sustainable development perspective. In that sense, it is somewhat inconvenient that international law, particularly 「World Trade Organization Agreement」(hereinafter referred as the “WTO Agreement” is insufficient to deal with the consumer protection issue, because the 「WTO Agreement」 declares ‘sustainable development’ as well ‘trade liberalization through market opening’ as its normative objectives and directly deals with the issue of protection of consumer interests in various aspects. Accordingly, the author thinks it is necessary to aggressively pursue ‘consumer protection and sustainable development oriented’ interpretation, application and operation of the 「WTO Agreement」 based on the recognition that the 「WTO Agreement」 can be a very useful international legal instrument for the protection of various consumer interests. Based on the above perception, this paper considers how the 「WTO Agreement」 can protect consumer interests and how its interpretation, application and operation should be improved for more sufficient protection of consumer interests from the sustainable development perspective.
  • 19.

    justifiable strikes are possible in essential public workplace? - legal issues in the 2009 railroad strike -

    shin soo jung | 2014, (62) | pp.533~557 | number of Cited : 3
    Abstract
    Essential maintenance service which allows strikes in essential public service under certain conditions was introduced in December 30, 2006 through the revision of Labor Unions Act that previously ordered direct arbitration of essential public service. Nevertheless, as we can see from the 2009 railroad strike, industrial actions of essential public services still has hilly roads ahead. Judicial precedents can easily deny the legitimacy of industrial action and defines strike illegal. The press publishes it with heavy head lines. Moreover, the workers, who participated in the strike, are applied with civil, criminal, and disciplinary liability. This paper reviews 2009 railroad strike that occurred after introduction of essential maintenance service. It looks into the process and contents of the Railway Corporation's decision on essential maintenance service first. Then it finds out legal issues on the process and results of railroad union's strike.
  • 20.

    A Study on Determining Nonobviousness Reflecting on Secondary Considerations : Transocean Offshore Deepwater Drilling vs Maersk Drilling USA

    Jun, Yong Cheul | 2014, (62) | pp.559~589 | number of Cited : 2
    Abstract
    In order to retain objectivity in determining an inventive step as an essential requirement for patentability, comparisons between the claimed invention and the teaching of the prior art have practically been made based on technical features. However, determining an inventive step by only considering technical features may increase the danger of hindsight since a person having ordinary skill in the art exposed to advanced technology after the filing date of the application may determine an inventive step after he or she grasps and understands the teachings of the prior art. In determining an inventive step, secondary considerations of non-technical features, such as commercial success, industry praise, unexpected results, copying, industry skepticism, licensing, a long-felt but unsolved need, and the like, are usefully taken to understand the genuine scope of the invention by reducing the danger of hindsight. Compared to the United States, it appears that South Korea is significantly more reluctant to reflect secondary considerations in determining an inventive step of an invention. In order to expand the object and scope of protecting industrially meaningful inventions with patents, while preventing hindsight in determining an inventive step, it is necessary to organize and specify standards for reflecting secondary considerations in determining an inventive step as well as items requiring proof from the patentee through future judgments or rulings. This thesis explores the ruling from the United States Court of Appeals for the Federal Circuit on Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc., a case in which an original ruling was overturned after non-obviousness of a patented invention was recognized due to secondary considerations, and analyzes the process of determining an inventive step reflecting secondary considerations. The ruling from the United States Court of Appeals for the Federal Circuit on Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc. may be used as a reference to prepare standards for reflecting secondary considerations in determining an inventive step.
  • 21.

    Problems and Legal Solutions related to the Fair Transaction of Subcontracting System of High Potential Enterprises in Korea

    Jeong-Ku PARK | 2014, (62) | pp.591~626 | number of Cited : 5
    Abstract
    This paper is concerned with problems and legal solutions of the subcontracting system in Korea. The business environment related to the subcontracting system in Korea has recently changed by global competition. The subcontracting system between the Large Enterprises and Small and Medium Enterprises(SMEs) including High Potential Enterprises(HPEs) has continued to change from vertical cooperative relationship into horizontal cooperative relationship: strength of competitiveness, open subcontracting transactions, enlargement and specialization of subcontracted company etc. Some survey research about the subcontracting system of the KOSDAQ listed enterprises in Korea shows that the KOSDAQ listed enterprises are composed of different companies: SMEs(75.4%), HPEs(19.5%), Large Enterprises(4.0%) etc, and it also shows that current Korean subcontracting system has many problems. Large Enterprises have abused their dominant positions in transactions with SMEs including HPEs and have practiced unfair transactions like unfair reduction of subcontract payment, revocation of subcontracting after verbally ordering, stealing of technology in transactions with SMEs including HPEs etc. It also shows that the unfairness of subcontracting trasactions is getting worse in 2. and 3. subcontracting transaction. To solve this problem, it is necessary to establish new efficient subcontracting system. Collaborative subcontracting based on ‘Faith’ and fair transactions between Large Enterprises and SMEs including HPEs are necessary to solve problems of the subcontracting system. In order to achieve this, it should be emphasized not only the role of Large Enterprises as prime contractor and the core competency of SMEs including HPEs as subcontractor but also the legal system for fair subcontracting system. The SME policies and the HPE policies of the government will encourage SMEs and HPEs to increase their competitiveness for the growth in the global economy. The government should establish the fair subcontraction system between Large Enterprises and SMEs including HPEs.
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