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ICSID 협약상(協約上) 취소제도(取消制度)의 성격(性格)및 취소사유(取消事由)에 관한 소고(小考): 명백(明白)한 월권(越權)및 이유(理由) 미기재(未記載)를 중심(中心)으로
박건도 ( Keon Do Park ) 한국법정책학회 2010 법과 정책연구 Vol.10 No.3
Since late 1990, arbitration on international investment dispute according to ICSID, seems to be very active. Article 52 of ICSID regulates on annulment of arbitration, which may function as relief step of error of arbitration, but may also harm the value of arbitration, which is being first and final solution of the disputes. Republic of Ecuador declared on annulment of ICSID treaty in 2009, which was established in the process of annulment of arbitration against M.C.I. Power Group, which will be studied in this paper. Reason claimed on annulment was obvious arrogation of rights regulated under proclamation b, and failure to state reasons under proclamation 3, among reasons classified under article 52, clause 1 of ICSID. However, committee on annulment interprets these reasons in very limited method. Furthermore, annulment of Article 53 of ICSID is different from an appeal. In another words, annulment is related to procedural legality than its accuracy in content, and the judgement becomes void and not corrected. In interpreting the reasons of annulment, the purpose of arbitration of ICSID should be considered, and should be determined in the way which links to the characteristics of annulment. If the combination of finality and accuracy is in the center of this problem, than the arbitration, result of annulment and interests of the related should be encountered as factor of solving this problem. For example, substances which causes significant effect should be included in the reasons of annulment. And in investigation on determining the existence of reasons for annulment, actual substance has to be the subject of investigation, thus differentiation between appeal and annulment is not clarified. Therefore, there is a demand to classify the reasons of annulment more specifically, to give predictability to contracting parties and other personnels.
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상법상 회사에서의 이해상충 규율에 관한 일고찰 - 주식회사의 이사를 중심으로 -
박건도(Park, Keon-Do) 한양법학회 2021 漢陽法學 Vol.32 No.3
Conflict of interest has caused much controversy in many areas and has been discussed continuously in recent years. Under the company law, it can be evaluated that discussions on duty of loyalty and conflicts of interest took place before and after the establishment of the usurpation of corporate opportunity in the 2011 Commercial Act. There will also be a number of conflicts of interest in the legal relationship with the company, but the most central part of which is the conflict of interest between the corporation and directors. Representative contents of the conflict of interest regulation are competition, usurpation of corporate opportunity, self-dealing etc., which are understood as a system aimed at preventing directors from pursuing their own interests based on the company’s assets or opportunities. In this study, first, the concept of a conflict of interest is examined, the provisions related to the conflict of interest in our legal system are also surveyed, and the legal principle of the fiduciary duty is also briefly summarized in this regard. Next, an overview of the UK and EU conflict of interest rules is provided. Finally, the rules on conflicts of interest under the Commercial Act were reviewed with a focus on the directors of a corporation.
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일반연구논문 : 상법(商法) 개정안(改正案) 중(中) 손해방지의무(損害防止義務) 관련 규정 (關聯規定) 에 관한 검토(檢討)
박건도 ( Keon Do Park ) 한국법정책학회 2015 법과 정책연구 Vol.15 No.1
Insured`s or insurance policyholders` duty to sue and labour can be acknowledged on the basis of gambling contractual feature of insurance, protection of public interest, and demand of good faith. It is first provided in the Marine Insurance Act 1906. Duty to sue and labour is legal duty, but it is not duty in the usual sense of private law obligations actionable in damages. A breach of duty by a insured or policyholder breaks the chain of causation between the insured event and the resulting loss and to that extent insurers are not liable. In principle, this duty imposed on insured or policyholder after the insurance accident happened. Insured or policyholder should exert ordinary prudence such as uninsured man would use under same circumstances, only to accident that can be admitted for subject-matter of insurances. Breach of this duty with intention or gross negligence makes insured or policyholder not to exercise insurance claims. In this case, insurer should prove the intention or gross negligence of insured or policyholder. Sue and labour expenses must be the expenses that insured or policyholder paid, that occurred after the accident`s happening, that can be admitted for loss of subject-matter of insurance and that should be necessary or beneficial for averting or minimizing the damages. In averting or minimizing the loss, insurers` instruction is not sine qua non. The duty to defend can be distinguished from the duty to sue and labour, also the defend expenses is different from sue and labour expenses in terms of each coverages. The Korean Commercial Law revision plan 200 provisions relevant to duty to sue and labour have some problems. First, duty to sue and labour should be acknowledged when the accident`s imminent dangers happens or when accident`s occurrence is worried after completion. Second, duty to sue and labour is ``indirect duty``. So in case of breaches of this duty by intention or gross negligence, the effects of breaches should be incapacity of insured or policyholder to request for damages to that extent, and should not be capacity of insurer to setoff. Third, in averting or minimizing the loss, insurers` instruction is not sine qua non. And the expenses that exceeds the sum of sue and labour expenses and rewards are not in insurance`s coverages.
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박건도(Park, Keon-Do) 한양법학회 2022 漢陽法學 Vol.33 No.2
The EU"s 2004/25/EC Directive has served as the basis for basic discipline in the tender purchase of listed companies in the European Union. The purpose of this directive is to first enhance legal stability in Tender-related acts and transparency and transparency in the EU as a whole. Second, to protect shareholders (especially minority shareholders), workers, and other stakeholders through transparency and information rights, Third, strengthening the freedom to trade and exercise voting rights on company securities, promoting tender purchases through prohibition of activities that hinder tender purchases, and fourth, strengthening the single market by free capital movement throughout the EU. The main contents of the guidelines include Article 5"s mandatory tender purchase rules, Article 9"s board neutrality rules, and Article 11"s defense reversal rules, and Article 5 applies to all member states, but the application of Articles 9 and 11 can be excluded at the option of the member states. It is also necessary to refer to the laws of major European Union member states centering on EU guidelines for the introduction of mandatory tender purchases, new stock options, and differential voting stocks that are continuously discussed in Korea.
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김재도,박건,손정환,홍영기,박정호,Kim, Jae-Do,Park, Keon,Son, Jeong-Hwan,Hong, Young-Gi,Park, Jeong-Ho 대한근골격종양학회 1996 대한골관절종양학회지 Vol.2 No.1
Liposarcoma is second in frequency only to malignant fibous histocytoma among the soft tissue sarcoma. Many different factors which might affect the survival rate of liposarcoma have been reported by many authors. The purpose of this study was to evaluate survival rate of liposarcoma and define the prognostic factors that affected survival rate. The authors analysed retrospectively 17 patients of liposarcoma in extremities from May 1984 to Dec. 1995 who had been treated in department of orthopaedic surgery of Kosin University Medical Center. All cases were resected with marginal or wide margin. There were 9 men and 8 women. The mean age was 48 years. The follow-up period ranged from 15 to 96 months. We compared the prognosis of the patients with several factors; age, sex, surgical staging, size, site, histologic type and treatment modality. At last follow-up, the presence of local recurrence was in 3 cases and the presence of lung metastasis was in 8 cases. The survival rates by Kaplan-Meier product limit method at 2 years and 5 years were 87% and 57% respectively. The statististically significant difference was estimated in histologic type, but was not estimated in age, sex surgical staging, size, site and treatment modality. In conclusion, the histologic type is considered as the most important factor of the prognosis in liposarcoma. Although it was too few patients for the differences to be statistically significant, we consider that surgical staging, site, size, the radio-therapy and chemothrapy in liposarcoma will affect the prognosis.
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