Prospects for Environmental Cooperation in the Yellow Sea

Auer, Matthew R. THE INSTITUTE OF EAST AND WEST STUDIES YONSEI UNIV 1992 Global economic review Vol.21 No.2

A Fresh Start for Restitution in Three-Party Situations under German Law

( Marietta Auer ) 서울대학교 법학연구소 2017 Journal of Korean Law Vol.16 No.2

With its ruling from June 6, 2015, the 11^th Senate of the German Federal High Court of Justice (Bundesgerichtshof, BGH) has overturned its principles on restitution of unjust enrichment in cases of revoked payment orders in payment services law. The article argues that this significant departure from previous case law opens the door for a general revision and redesign of the German law of restitution in three-party situations. The article proceeds from an explanation of the classic “instruction model” (Anweisungsmodell) as the general German model of restitution in three-party situations. By means of the instruction (Anweisung), the debtor/instructor links two relationships, i.e. the cover relationship (Deckungsverhaltnis) between the debtor/instructor and the instructee/payer with the underlying debt relationship (Valutaverhaltnis) between the debtor/instructor and the recipient/payee. As a consequence, both relationships are simultaneously performed by a single transfer of benefit between instructee and recipient. In such three-party instruction situations, restitution of unjust enrichment is generally carried out “around the corner” (“ubers Eck”) under German Law if the instruction is valid. An exception of direct restitution between instructee and recipient only applies if the instruction is lacking and principles of estoppel do not apply in favor of the recipient. This rule has, however, been seriously challenged by the Federal High Court of Justice`s ruling from June 6, 2015. Contrary to the current practice to apply the principles of estoppel to revoked payment orders, the instructed bank from now on cannot demand restitution from the instructing payer even if the payee is in good faith. The payee is, in other words, no longer shielded from a direct restitution claim of the bank even if his good faith merits protection. Rather, in all cases of unauthorized payment, restitution now is carried out exclusively between the bank and the payee by way of a direct claim of non-performance restitution. The article evaluates the consequences of this novel ruling against the background of recent academic critique. It argues that the Court has hit the right spot by reversing the established relationship between the rule of restitution “around the corner” and the exception of direct restitution for unauthorized payment orders. However, there remains something unsatisfactory and preliminary in the Court`s reasoning which points to deeper problems within the general system of three-party restitution under German law. This is also reflected in the academic comments to the ruling. Their criticism is not so much directed at the outcome of direct restitution against the payee, but rather at the Court`s lacking willingness to coherently integrate this outcome into the traditional principles on restitution in three-party situations. In fact, this lack of willingness is so striking that it seems likely that the Court`s decision will provoke a general revision of the traditional principles on restitution in future. At a closer look, it is indeed impossible to reconcile the Court`s ruling with the traditional system of restitution. After all, the pivot of the instruction model is to give priority to restitution “around the corner,” i.e. to restitution involving the instructor and excluding direct recovery. Yet this very certainty is called into question by the recent decision. Indeed, the underlying constellation of a revoked payment order illustrates that excluding direct restitution does not distribute litigation and defense risks more equitably than by allowing direct restitution. On the one hand, the bank will mostly end up making a direct claim against the payee anyway. On the other hand, the questionable abstract protection of the bona fide payee via restitution “around the corner” comes at the cost of a considerable, unjustifiable gap in the protection of the supposed payer. If, on the other hand, there is direct restitution between the bank and the payee from the outset, the revoking payer is not affected by the restitution, but can always and with legal certainty make a claim against the bank to have the mistaken booking cancelled. There should be no doubt as to which of the two solutions can claim the charm of simplicity and legal clarity. The recent decision, therefore, gives reason to put to the test the entire regime of restitution in three-party situations - a regime that has hit a dead end of doctrinal construction that does not further but rather veil the adequacy of the underlying restitution mechanisms. Starting point of a new conception of third-party restitution under German law is a return to the general provisions on performance (Erfullung) in the law of obligations. In the case of third-party involvement, BGB §§ 267, 362 para 2 offer clear rules as to who is the performing party and who the recipient: In both cases, it is not the contractual partner, but rather the third party. An unbiased look at the BGB, therefore, yields an understanding of the concept of performance and of the distribution of the performance relationships between the parties that considerably departs from the prevailing view on restitution in three-party situations. Contrary to the doctrine of restitution “around the corner,” the central performance relationship, which also gives rise to the primary claim of restitution, should hence be situated in the third party relationship between the instructee and the recipient. Assuming that the function of the concept of performance is to identify both the object of performance and the parties of the restitution claim, it seems fundamentally wrong to separate the performance relationships in three-party situations from the actual object of performance by attributing performance “around the corner” on normative grounds. From a point of view of legal clarity and efficiency in adjudication, it would make much more sense to start litigation of restitution where the lost object actually ended up: That is - obviously - with the recipient. On this basis, the present a rticle concludes that the time is ripe for a fundamental rethinking of three-party situations in German restitution law. In particular, courts and scholars should consider to drop the doctrine of restitution “around the corner” modeled on the instruction situation and to reverse rule and exception between restitution “around the corner” and direct restitution in favor of the latter.

라틴아메리카 지역의 고용 관련 과제와 정책대응

Janine Berg,Christoph Ernst,Peter Auer 한국노동연구원 2007 국제노동브리프 Vol.5 No.10

Urinary Albumin Excretion and Vascular Function in Rheumatoid Arthritis

Herwig Pieringer,Tobias Brummaier,Bettina Piringer,Lorenz Auer-Hackenberg,Andreas Hartl,Rudolf Puchner,Erich Pohanka,Michael Schmid 대한의학회 2016 Journal of Korean medical science Vol.31 No.3

Rheumatoid arthritis (RA) is associated with significant cardiovascular (CV) morbidity and mortality. Increased urinary albumin excretion is a marker of CV risk. There are only few data on urinary albumin excretion in RA patients. Aim of the present study was to investigate urinary albumin excretion in RA patients and analyze, whether there is an association between urinary albumin excretion and vascular function as measured by the augmentation index (AIx). In a total of 341 participants (215 with RA, 126 without RA) urinary albumin-creatinine ratio (ACR) was determined and the AIx was measured. The Kolmogorov-Smirnov-test was used to cluster patient groups whose distributions of ACR can be considered to be equal. A crude analysis showed a median ACR of 6.6 mg/g in the RA group and 5.7 mg/g in patients without RA (P > 0.05). In order to account for diabetes (DM) we formed 4 distinct patient groups. Group 1: RA-/DM- (n = 74); group 2: RA+/DM- (n = 195); group 3: RA-/DM+ (n = 52); group 4: RA+/DM+ (n = 20). Clustering of these groups revealed two distinct patient groups: those without RA and DM, and those with either RA or DM or both. The latter group showed statistically significant higher ACR (median 8.1 mg/g) as the former (median 4.5 mg/g). We found no significant correlation between AIx and ACR. Urinary albumin excretion in patients with RA or DM or both is higher than in subjects without RA and DM. This can be seen as a sign of vascular alteration and increased CV risk in these patients.

Indonesian Throughflow drove Australian climate from humid Pliocene to arid Pleistocene : ITF Drove Australian Climate

Christensen, Beth A.,Renema, Willem,Henderiks, Jorijntje,De Vleeschouwer, David,Groeneveld, Jeroen,Castañ,eda, Isla S.,Reuning, Lars,Bogus, Kara,Auer, Gerald,Ishiwa, Takeshige,McHugh, Cecilia M. American Geophysical Union 2017 Geophysical Research Letters Vol. No.

The enigma of rare Quaternary oolites in the Indian and Pacific Oceans: A result of global oceanographic physicochemical conditions or a sampling bias?

Gallagher, S.J.,Reuning, L.,Himmler, T.,Henderiks, J.,De Vleeschouwer, D.,Groeneveld, J.,Rastegar Lari, A.,Fulthorpe, C.S.,Bogus, K.,Renema, W.,McGregor, H.V.,Kominz, M.A.,Auer, G.,Baranwal, S.,Casta& Elsevier 2018 Quaternary science reviews Vol.200 No.-

<P><B>Abstract</B></P> <P>Marine ooids are iconic indicators of shallow seawater carbonate saturation state, and their formation has traditionally been ascribed to physicochemical processes. The Indo-Pacific stands out as a region devoid of oolites, particularly during the Quaternary: the “ooid enigma”. Here we present results from recent coring by the International Ocean Discovery Program (IODP Expedition 356) off west Australia that shows that ooid horizons are common in Pleistocene strata up to 730,000 years old. Extensive “ooid factories” were created due to the presence of long-lived tidally influenced flat–topped tropical platforms suitable for intermittent ooid accretion over hundreds to thousands of years during highstands and times of lower sea level. This work suggests marine ooids may actually be more common in Indo-Pacific than previously reported. Past global ocean alkalinity was elevated during Pleistocene glacial periods and continental climate was generally more arid in the Indo-Pacific region compared to interglacials and the Holocene. Therefore, increased aridity associated with higher alkalinity conditions during the glacials facilitated ooid precipitation on adjacent tropical carbonate platforms particularly offshore from arid Australia. This confluence of factors suggests that more “ooid factories” may be encountered by further coring Indo-Pacific regions with Pleistocene flat long-lived carbonate shelves. However, Indo-Pacific Quaternary ooid occurrences outside Australia are rare, suggesting that the Northwest Shelf may be a unique archive of this non-skeletal precipitate. Further investigations into the petrography and geochemistry of pre-Holocene ooid occurrences will provide insights into their origin and the relative role of biotic, physicochemical and other factors in their formation.</P> <P><B>Highlights</B></P> <P> <UL> <LI> Oolites are rare in the Indo-Pacific, particularly during the Quaternary: the “ooid enigma”. </LI> <LI> IODP Expedition 356 off west Australia cored common ooid horizons in strata up to 730,000 years old. </LI> <LI> Extensive “ooid factories” were deposited on tidally influenced flat–topped tropical platforms. </LI> <LI> Oolites were deposited during low and high sea levels in generally arid conditions. </LI> <LI> More “ooid factories” may be found by coring regions with flat long-lived carbonate shelves. </LI> </UL> </P>

Functional Coatings Produced by Plasma Processes - Technology and Recent Applications

W. Diehl,R. Bandorf,K. Bewilogua,S. Biehl,J. Brand,T. Jung,M. Keunecke,C.-P. Klages,S. Kondruweit,B. Szyszka,M. Thomas,M. Verg?ohl,G. Br?auer 한국표면공학회 2010 한국표면공학회 학술발표회 초록집 Vol.2010 No.11