중국의 국제물품매매계약에 UN관한 협약 (CISG) 적용에 관한 연구 -중국 법원판례에 대한 분석을 중심으로-

윤상윤 ( Sang Youn Youn ) 한국외국어대학교 중국연구소 2012 中國硏究 Vol.56 No.-

CISG (United Nations Convention on Contracts for the International Sale of Goods) was signed in 1980 and came into force in 1988, with a purpose to resolve conflicts that occur from contracts for the international sale of goods by uniform regulation. It had been ratified by 77 countries. This Convention applies to contracts of sale of goods between parties whose places of business are in different states, and when the states are contracting states (CISG Art.1 (1) (a)), or when the rules of private international law lead to the application of the law of a contracting state (CISG Art.1 (1) (b)). China is a contracting state of CISG, but because of reservation of the CISG Art.1 (1) (b), the Convention could be applied only through CISG Art.1 (1) (a). Besides, many judical precedents in China decided to exclude the autonomous application of CISG Art.1 (1) (a), according to Section 142, Article 2 of the Civil Law of China or by judicial interpretation of China`s Supreme People`s Court. In this research, theory and precedents related to the application of CISG in China are analyzed and issues are pointed out. With the drawbacks, in case of the China`s Court posses the right of jurisdiction, the sphere of application of CISG would be confined whereas the domestic Civil Law of China would be much enforced.

중국 민법전 상의 계약금계약에 관한 연구

윤상윤 ( Youn¸ Sang Youn ) 중국학연구회 2021 중국학연구 Vol.- No.97

중국 전국인민대표대회(입법부)는 2020년 5월 8일 제13기 전국인민대표대회 제3차 회의를 통해 중국 민법전(中华人民共和国民法典)을 통과시켰고 2021년 1월 1일부로 시행되었다. 민법전을 제정하면서 산재된 단행법률을 체계성을 갖춘 법률로 통합하였을 뿐 아니라 제·개정 필요가 있는 다수의 법률규정이 개정되거나 신설되었다. 담보법, 담보법사법해석과 계약법에 산재되어 있었던 계약금과 관련된 규정을 민법전에서 3개 조문으로 통합하여 규정하였다. 중국 민법전에서 규정한 계약금은 위약금으로서의 계약금이고 실제 계약상의 계약금은 일반적으로 위약금의 성질을 가지는 경구가 많아 계약이행과정 전반에 계약금이 문제된다. 특히 계약위반 이후에도 계약금이 법적 쟁점이 될 가능성이 높고 현실에서도 계약위반을 원인으로 하는 다수의 민사소송에서 계약금이 법적 쟁점이 되고 있다. 본 논문에서는 중국의 구 담보법과 구 계약법 및 최근 제정ㆍ시행된 민법전 제3편 계약(合同)에서의 계약금에 관한 유관조문을 중심으로 계약금의 개념, 계약금의 법적 성질, 계약금과 위약금 및 손해배상의 관계 등에 관한 학설, 최근 판례를 분석하고 비교법적 검토도 병행하여 중국 민법전이 소송과 중재에서 적용법률이 되었을 때 계약금과 관련된 법적 예견가능성을 제고시키고 시사점 내지 법적 유의점을 추론한다. On 8 May 2020, the National People’s Congress of China passed the Chinese Civil Code by incorporating the Civil Law, the Law on Property Rights, Collateral Law, Contract Law, and Tort Law. In the enactment of the Civil Code, a number of civil laws were not only integrated into Civil Code, but also many legal regulations that needed to be enacted or revised were revised or newly established. The provisions relating to down payments scattered in the Securities Act and the Contract Act were incorporated into three clauses in the Civil Code. This paper analyzes theories and recent precedents on the main contents of related articles on the concept of down payment, the nature of down payment, the relationship between down payment and damages. In addition, this paper aims to enhance the legal predictability of down payment clause in contract clause and infer legal significance when the Chinese Civil Code becomes an applicable law in litigation and arbitration.

중국 국유기업 반독점 규제에 관한 고찰

윤상윤 ( Sang Youn Youn ) 한국외국어대학교 중국연구소 2012 中國硏究 Vol.54 No.-

There has been a general consensus about the need of reform of state-owned enterprises in China. However, the opinions of details such as direction, velocity and method, are sharply divided. In the standpoint of a competition policy, it is rated that the reform of state-owned enterprises incited the Chinese market to generate cartel, misuses of dominant position and unfair trades. Moreover, inseparate government functions from enterprise management made hard to differentiate the concept of administrative act from action by state-owned enterprises, and these actions were intermingled to prevent strict enforcement of the antitrust law. There were only a little expect that the problem of administrative monopoly would get solved by the antitrust law, even at the time of enactment. It was merely expected that antitrust would provide a symbolic value with reducing administrative monopoly. But problems of antitrust were indicated in legal responsibility dealing with administrative monopoly, and the law was almost never been enforced in that field. Therefore, this kind of regulation could provide a legal shelter to administrative monopoly, when regulating behaviors of state-owned enterprises with antitrust law. Market behavior of state-owned enterprises should be regulated strictly as a monopolistic behavior. But, I think that Enforcing the regulation of state-own enterprise`s independent action as cartel and misuses of dominant position isn`t impossible. Social needs in enterprise management has been increased, because the old dissatisfactions such as high-price and low-grade services in oligopolistic market of state-owned enterprises had been accumulated. Regulatory agencies must differentiate naturally occurred- from political monopolistic market, and actively enforce the antitrust to resolve the monopolistic structure of state-owned enterprise. This would be the prerequisite of harmonic development in structure and forms of China market.

중국 토지관리법 상의 집체건설용지사용권에 관한 연구

윤상윤 ( Sang Youn Youn ) 한국외국어대학교 중국연구소 2013 中國硏究 Vol.58 No.-

The focus of collective land management system reform in china is to establish a legal system and legal relationship, including urban and rural collective constructive land right in Property Law and Land Administration Law of PRC, and to regulate the transfer of the rural collective constructive land, in order to manage the total amount of agricultural land. This article firstly describes the related concepts of rural collective constructive land right, and analyzes the subject of legislation, the object classification, as well as the form of the transfer of rural collective constructive land right and houses with limited property rights in PRC. The houses with limited property rights, this issue has become extremely difficult problem to solve. The houses with limited property rights is the property right problem occurred during the collective construction land right transfer process in general, so validation of the collective construction land right transfer linked to the houses with limited property rights legality verification. The current law and policy take a negative attitude for housing with limited property rights basically. In conclusion, in order to eliminate instability of the collective construction land rights legal subjects and legal relations, it should not only need to complete Land Administration Law and Property Law with regard to the right of collective construction land, but also depends on fundamental reform of land management system in rural areas.

중국의 공직자 개인정보 및 재산 신고제도에 관한 고찰

윤상윤 ( Sang Youn Youn ) 한중사회과학학회 2014 한중사회과학연구 Vol.12 No.3

China has put focus on the policy of property declaration since the 1980s. “provision of income declaring for leading cadres of county (division) level in Party and government administrative agency” was published by the Central Committee of the Communist Party of China(CPC) and state council in 1995, “A trial provision of property declaring for the province magistrates” was published by The Central Discipline Inspection Commission and the Organization Department of the CPC Central Committee on 2001, “Provisions of reporting leading cadres’s personal information” was published by General Office of the CPC Central Committee and General Office of the State Council of the PRC while rescinding 1995’s provision of income declaring on 2010. In recent years, CPC and Government started to investigate and establish the policy of property declaration. But due to the absence or incompletion of related regulations and other factors, property declaration system effect hasn’t been fully demonstrated yet. This article focuses on the main content of China’s two Provisions and tries to analyze problems and improvements of two Provisions. In conclusion, in order to establish more efficient official property declaration system, CPC and Government should enact legislation of the property declaration, including public disclosure system in anti-corruption law, and set up independent managing institution, impose the system of public supervision in the establishment of official property declaration system in China.

중국 농촌토지재산권 거래제도에 관한 연구: 충칭시 지표거래제도를 중심으로

윤상윤 ( Youn Sang Youn ) 현대중국학회 2018 現代中國硏究 Vol.20 No.2

중국 중앙정부는 절대적으로 유지하여야 할 농경지면적을 18억 묘(畝)로 설정하고 있다. 집체소유의 농촌토지와 국가소유의 도시토지의 이원적 구조 하에서 도시토지 수요가 증가하는 데 따른 적절한 도시토지 공급과 농촌토지의 적정면적 유지와 효율적 활용이라는 목표를 달성하기 위한 중앙정부와 지방정부의 정책적 노력은 지속되어 왔다. 충칭시의 지표거래제도는 농민의 토지사용권의 시장거래를 통한 농촌토지사용권 처분의 새로운 경로를 제시하였다. 즉 토지공유제의 원칙을 유지하면서도 농민의 토지사용권을 거래시켜 보상금을 제공하는 농민재산권의 농민귀속이라는 해결책을 제시하였다. 본 논문은 충칭시의 지표거래제도의 등장배경, 제도의 구조, 문제점을 분석한다. 또한 중앙정부의 지표거래제도를 응용한 새로운 정책, 제도를 이어서 고찰하고 지표거래제도의 전국적 확대가능성을 살펴본다. The land ticket system as an innovative land consolidation, using, transfer mode, is based on the common development of urban and rural areas and emerges as the times required . By linking urban construction land and rural construction land ends the tension and the waste of the contradictory situation. Sustainable development is realized with the total amount of the urban and rural construction land not to increase and cultivated land is not reduced, a series of good effect have been produced . The system has realized the potential relationship between outer suburb rural construction land and urban construction land between urban and rural areas, promote land circulation, greatly enhance the value of rural land in remote areas, solve rural homestead vacant low efficiency using problem, breaking the bottleneck of land resources and the urban development is generally encountered, it has a practical and significant meaning. Due to the ticket system is still in its initial stage, some defects are exposed in the process of the actual operation of the system, such as insufficiency of land ticket, complexity of distribution procedure, rent-seeking behavior on land fertility inspection process. This article analyse the whole process of operation of ticket system, in allusion to the land ticket initial stage, the land ticket trading stage, the land ticket using stage, the land ticket price distribution stage.

중국 계약법 상의 해제권에 관한 연구

윤상윤 ( Sang Youn Youn ) 한중사회과학학회 2016 한중사회과학연구 Vol.14 No.3

This article provides a general description of the characteristics of termination of contract under Chinese Contract Law(CCL), and both theoretical issues that have arisen in Chinese academics and relevant important precedent in Chinese Courts. This article also analyzed trend of judgment on precedents that the Supreme Peoples’s Court of the People’s Republic of China(PRC) applied contract termination right of Chinese Contract Law. The main contents of this article, which follows the sequence of composition of CCL within its scope, reviewed termination reqirements under CCL art.19 and clausula rebus sic stantibus which the Supreme Peoples’s Court of PRC accepted by judicial interpretation or guidelines of the Supreme Peoples’s Court as grounds of termination. This article covered the issue of termination of contract and suggested the legal basis of several rules related to the termination of contract by analysing CCL. Furthermore, this study suggested legal check points or implication as well as interpretation and evaluation on termination of contract of CCL by linking with recent Chinese court rulings through a comparative analysis with CISG which have important legal positions in the area of international commercial contract.

중국 가격법의 가격위법행위와 적용사례 연구

윤상윤 ( Youn Sang Youn ) 한중사회과학학회 2017 한중사회과학연구 Vol.15 No.3

Since the first competition law in the People`s Republic of China (China), named the Antimonopoly Law (AML), entered into force in 2008. Price Law of the People`s Republic of China (Price Law) entered into force in 1997 before AML. Price Law has been several provisions for monopoly behaviors. Therefore, there are both conflicts and coherence between the two laws. This study aimed at comparison analysis between illegal price behaviors in Price Law and monopoly behaviors in AML. Recently, the National Development and Reform of Commission (NDRC) decided to strengthen the implementation of Price Law and to establish related legislations. In addition, some remarkable regulatory cases were issued by NDRC Since 2014. Along with the rapid development of the Economic Society in China, the price law system has a more significant meaning to the regulation of the market economic behavior. Based on the presentation of the basic definition of the legal system, this paper studies the main provisions existing in China`s price law, and analyzes recent landmark judgments and NDRC`s regulatory practices.

중국 반독점법상 카르텔 규제에 관한 고찰

윤상윤 ( Sang Youn Youn ) 한중사회과학학회 2012 한중사회과학연구 Vol.10 No.2

The Anti-Monopoly law of the People`s Republic of China (Anti-Monopoly Law) has been enacted at July 30th, 2007 and became effective since first of August, 2008. Businesses as subjects to the regulatory, especially those participating in Chinese market are focusing the actual enforcement of the law. Since the law took effect, antitrust agencies of China established enforcement regulations of each behavior. In case of cartel, State Administration for Industry and Commerce of the People`s Republic of China(SAIC) and National Development and Reform Commission(NDRC) is in process of legislation which includes procedural rules and assessment guidance since 2009 and 2010, respectively. SAIC and NDRC enacted two enforcement regulations-“Enforcement Regulations for the Industry and Commerce Administrations on the Prohibition of Monopolistic Agreements” and “Enforcement Regulations on Anti-price Monopoly”-in December, 2010. After the antitrust enactment, legislation of enforcement regulations or guideline to improve the domestic and foreign predictability of the law was required. In addition, there were criticisms that actual execution of the law is not available without concrete enforcement regulations. Considering the legislation status of cartel-related enforcement regulations, it is expected that both enforcement agencies would execute the law to cartels shortly, based on the anti-monopoly and enforcement regulations of cartel. When anti-monopoly agency of China diversify from regulating only the mergers and turns to actively restrict the misuses of dominant position of the market and cartels, businesses penetrated in Chinese market including Korean corporations would face with a new legal problem. Therefore, an in-depth study of cartel-related enforcement regulations within the present Anti-Monopoly Law is warranted.

중국 반독점법상 시장지배적 지위 남용행위 규제에 관한 연구

윤상윤 ( Sang Youn Youn ) 한중사회과학학회 2013 한중사회과학연구 Vol.11 No.2

In a market economy, small number of business operators may occupy more prominent position in the relevant market due to strong economic strength, product characteristics and other reasons. These operators could control the market stronger than other operators, and even, may be able to have complete control over the market. If they abuse their dominant market position, it may prevent or restrict fair competition in the market. On August 1, 2008, the Chinese Anti-Monopoly Law (AML) entered into force. Up to date, Chinese AML enforcement agencies have not implemented dominant market position case, but NDPR(National Development and Reform Commission) and SAIC(State Administration for Industry & Commerce) promulgated two guidelines on prohibition of abuse of dominant market position and Chinese People`s Court has taken a positive attitude in facilitating private antitrust litigation. This article looks at one particular figure of the AML, that is, the abuse of a dominant market position, and analyzes two guidelines of NDPR and SAIC. Furthermore, this article also reviews the judgment of People`s Court of People`s Republic of China in private antitrust litigation which directly related with the abuse of dominant market position.