전자식 선화증권의 활성화 방안에 관한 고찰 : Bolero Project를 중심으로

조현정,오현석 계명대학교 사회과학연구소 2000 한국사회과학연구 Vol.19 No.1

국제상거래법상 Force Majeure와 Hardship에 관한 고찰

오현석(Hyon Sok OH) 韓國貿易商務學會 2016 貿易商務硏究 Vol.69 No.-

There is legal relation between both parties after contract formation. The parties are liable for performing each duties but a party is not liable for a failure to perform the duties if party proves that the failure was due to the force majeure. The forec majeure has different concepts and legal principles such as change circumstance, hardship, frustration, impediment and so on. Therefore, it need to analyze a historical background and their presence in various domestic legal systems. Although the CISG describes Art.79 impediment instead of using the force majeure, the impediment has several interpretative limitation. The CISG pursue to harmonize divergent legal concepts and principles from various national laws and legal systems but the harmonization of legal systems make the impediment more confused. The article goes on to analyzes about limitation of the impediment and reviews to examine the force majeure and hardship in PICC. Thus both parties of international contract insert hardship clause in order to prevent the problem of judgment in a court or a court of arbitration under impediment of CISG.

OECD 정보기술전망(2006)에 대한 지표평가와 ICT 국제무역수지 및 정책개발에 대한 동향

오현석(Hyon-Sok Oh) 한국관세학회 2007 관세학회지 Vol.8 No.1

Regarding to the OECD information Technology Outlook 2006, Following the strong recovery in am-04, ICT(Information and Communications Technology) goods trade settled back to steady growth in 2005 and is expected to grow at around the same rate as manufacturing trade in am. However, rapidly increasing commodity prices, coupled with ongoing price declines for ICT equipment, disguise the solid performance of ICT goods trade (in volume) in 2005 and 2006. In 2004, OECD exports of ICT goods reached a new peak in current USD, driven by growth in electronic components, audio and video and other ICT-related equipment OECD imports also achieved a new high, driven by growth in communication, audio and video equipment However, at 13.2%, the share of ICT goods in total goods trade is only a little above that of 1996. Computer and information services trade has been more dynamic in value terms. Ireland is by far the leading OECD exporter of these lef services and software goods, with combined exports of over USD 20 billion in 2004. ICTs are increasingly recognised as a source of innovation and economic growth, and national ICT strategies have pushed towards further integration of IT and economic development policies to meet emerging challenges. To maximise policy effectiveness, countries are increasingly co-ordinating policy both vertically, through the layers of government, and horizontally, across ministries and agencies, to achieve more coherent and effective cross-ministry and agency planning and improve delivery of more targeted policies and programmes. As countries have achieved higher levels of basic ICT access, skills and content, the focus has shifted to deepening these achievements through broadband, more advanced skills and more sophisticated content.

CISG상 물품 적합성의 묵시적 기준에 관한 고찰

오현석(Hyon-Sok OH) 한국무역상무학회 2021 貿易商務硏究 Vol.89 No.-

본 연구는 CISG 제35조 제2항 (가)호 및 (나)호에서의 ‘통상 사용목적’ 적합성과 관련하여 규정상의 의미 및 요건의 차이점 등을 비교 고찰하고자 하였다. 또한 당해 규정과 관련된 해석상의 문제를 선별하여 학설의 경향을 파악하고자 시도하였다. 특히 논의의 범위를 CISG상 물품적합성에 관한 묵시요건이라는 특정 부분으로 한정하였다는 점, 나아가 해석론적 쟁점과 관련한 구체적인 적용사례를 분석하였다는 점에서 선행연구와 연구적 차별성을 갖추고자 하였다. 먼저 본 연구에서는 CISG상 물품의 계약적합성 요건과 그 범위를 개괄적으로 살펴본 후, CISG 제35조 제2항 (가)호의 적합성 묵시요건으로서 통상 사용목적과 관련 사례를 검토한 후, (나)호의 적합성 묵시요건으로서 특별 사용목적과 관련 사례를 순차적으로 검토하였다. 이를 토대로 CISG 제35조 제2항의 해석상 문제들에 대한 실무적인 시사점 등을 고찰하였다. The purpose of this paper is to analyze the presumed implications the conformity of the goods to the terms of the contract under the CISG. In order to analyze, the paper reviews concepts, requirements and scopes of the Article 35(2) (a) and (b) by analyzing case law. According to one decision relating Article 35(2) (a), the New Zealand appeal court has held that the seller is to deliver goods to a particular jurisdiction and can infer that they will be marketed there is not sufficient to impose the standards of the importing jurisdiction in determining suitability for ordinary purposes under article 35(2)(a). The court indicated that the standards in the importing jurisdiction would have applied if the same standards existed in the seller’s jurisdiction, or if the buyer had pointed out the standards to the seller and relied on the seller"s expertise. Article 35(2) (b) describe that “Except where the parties have agreed otherwise, the goods do not conform with the contract unless they: (b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller’s skill and judgement.” The German court has held that a buyer did not reasonably rely on the seller’s skill and judgment where the buyer was itself an experienced importer of the goods. Also, the court has ruled that Article 35(2)(b) CISG only applies if there is a ‘technical gap’ between the parties if the seller is more knowledgeable than the buyer.

인공지능의 지식재산권 보호에 관한 연구

오현석(Sok-Hyon Oh) 한국인터넷전자상거래학회 2018 인터넷전자상거래연구 Vol.18 No.1

The purpose of this study is to evaluate whether the invention and literary work of artificial intelligence can be the subject of intellectual property rights such as patent rights and copyright, and to prepare the legislative guidelines for the revision of the law in the future. In today`s age, boundaries of each field are broken down and are looking for new things by convergence. We are trying to integrate with other fields to find original new ideas, and there is artificial intelligence in this age. Under current intellectual property laws, artifacts are not attributed to artificial intelligence. Artificial intelligence is creating things that are equal to or better than human inventions and works. Only humans are making inventions and works without much mental effort using these artificial intelligences. Therefore, intellectual property law should be changed according to changes of the age and technology. Through this research, it is necessary to secure the legal stability of patent rights and copyrights by attributing inventions and works created by artificial intelligence to artificial intelligence.

베트남의 상사중재법제와 중재절차

오현석(Hyon sok Oh) 한국국제상학회 2014 國際商學 Vol.29 No.4

본 논문은 2012년에 개정된 베트남 국제중재센터(VIAC) 중재규칙을 중심으로 베트남 법제상 중재절차의 전체적인 구조 및 주요한 개정사항 등을 검토해 보았다. 나아가 KCAB 국제중재규칙과도 비교하여 VIAC 중재규칙의 취지와 문제점 및 실무적 유의점 등을 살펴보았다. 2012년 VIAC 중재규칙은 전반적인 측면에서 국제적 수요와 요구에 부응하여 세부적인 규정들을 정비하는 방향으로 개정되었다. 다만 다음과 같은 실무적 유의점들을 생각해 볼 수 있겠다. VIAC 중재규칙은 외국적 요소(foreign element)가 없는 경우, 분쟁의 본안에 적용할 준거법으로서 베트남법이 적용되어야 함을 원칙으로 하고 있는데, 이는 중요한 문제점이라고 볼 수 있다. 예컨대, 외국인이 투자한 베트남 법인간의 중재사건인 경우 베트남법이 적용될 가능성이 상당히 크다. 외국적 요소의 존재에 관한 명확한 해석기준을 제시하지 않았다는 측면에서는 실무적인 주의가 필요하다고 본다. 또한 VIAC 중재규칙의 경우, 신속절차와 긴급 중재인제도에 관하여는 명문의 규정을 두고 있지 않다. 이러한 제도들이 전부 도입되지 않은 VIAC 중재규칙은 국제적 활용성 및 국제적 정합성이라는 측면에서 일정한 한계가 있을 가능성이 있다. Purpose : The purpose of this paper is to introduce the international commercial arbitration system in Vietnam and to review the arbitral procedure in Vietnam. Research design, data, methodology : Research methodology taken in this paper is literature and comparative legal researches. This paper analyzes Vietnamese international arbitration system by analyzing various proceedings of Vietnam International Arbitration Centre (VIAC) arbitration rules of 2012. It, also, studies specific VIAC arbitration rules in comparison with KCAB International Rules or ICC Arbitration Rules. Results : On 17 June 2010, the Vietnam National Assembly passed the Law on Commercial Arbitration No. 54/2010/QH12, which took effect on 1 January 2011 and replaced the Arbitration Ordinance of 2004. VIAC also operates in accordance with the Arbitration Law and its own Rules of Arbitration. VIAC will likely to refuse cases where parties have specified the application of arbitration rules other than VIAC's. The recent addition by VIAC of a limited number of foreign arbitrators to its panel of arbitrators from which disputing parties may choose is a positive sign that Vietnam is trying to strengthen access to and the flexibility of arbitration in Vietnam. Conclusions : This paper suggest that the choice of law applicable to an arbitration proceeding depends on whether a dispute involves a "foreign element" under the VIAC Rules. It is the most important problem facing international stream of arbitration systems.

국제물품매매에서 손해배상청구권에 관한 비교법적 고찰

오현석(Hyon-Sok OH) 한국무역상무학회 2018 貿易商務硏究 Vol.77 No.-

This study compares the SGA and CISG to find out the difference of the criteria for calculating damages. and it intends to give some important points in trade practice. The damages is intended to compensate the victim for the breach of contract but there are differences between SGA and CISG as follow. First, the SGA and CISG have the same purpose of claiming damages. Both laws and regulations are subject to a full indemnification to compensate for the breach of the contract by the amount equivalent to the loss suffered by the victim. Second, in the general principle related to the calculation of damages, both law enforcement officials are required to be able to predict damages caused by breach of contract. In the case of SGA, however, a foreseeability test or remoteness of damages is required for the relationship between the contract violation and the loss. In other words, it can be said that the causal relation between the contract violation and the damage is strictly applied rather than the CISG. Finally, both laws and regulations of SGA and CISG have a big difference in criteria for calculating damages. In the CISG, after the contract is canceled, it is classified according to the existence of the alternative transaction and the damage amount is calculated based on the contract price. On the other hand, the SGA estimates the loss based on the market price at the delivery of the goods, reflecting the change in the market price instead of the contract price of the goods.

국제상사계약상 신의성실의 원칙

오현석(Oh, Hyon Sok) 성균관대학교 법학연구소 2012 성균관법학 Vol.24 No.2

This paper discusses the principles of good faith under the contract for the international sale of goods. In contract law, the implied covenant of good faith and fair dealing is a general presumption that the parties to a contract will deal with each other honestly, fairly, and in good faith, so as to not destroy the right of the other party or parties to receive the benefits of the contract. It is implied in every contract in order to reinforce the express covenants or promises of the contract. Article 7(1) of CISG, the principle of good faith is a general principle of the CISG. But the good faith provision in article 7(1) should be used only in interpreting the Convention. It is a principle that permeates the Convention, providing the policy basis for many provisions. In addition, provisions of the CISG reflect a foundation in good faith through its variants such as reasonableness and fair dealing. In the meantime, Article 1.7(1) of PICC supports the imposition of a positive obligation of good faith on contracting parties. It provides that each party must act in accordance with good faith and fair dealing in international trade. The PECL and its good faith provisions are the product of a committee without law-making authority, and are designed as a statement of derivative general legal norms rather than a description of any existing body of law. Thus, the PECL lacks formal legal authority, although the drafters envision such authority arising through adoption or use of the Principles by legislatures, judges, arbitrators, and contracting parties. The importance of mutual confidence between parties to international sales transactions can hardly be underestimated. To ensure such confidence, all involved must possess an unambiguous understanding of the obligation to act in good faith. Unfortunately, formulating a clear picture of this obligation is not always easy given the varying constructions and inherent ambiguities which surround the notion of good faith. It is time when good faith becomes a principle recognised internationally. It will be the turning point of our juridical regime.

한ㆍ미 무역구제제도 및 KORUS-FTA 제10장에 대한 평가 및 유의점에 관한 고찰

오현석(Oh, Hyon Sok) 한국무역상무학회 2009 貿易商務硏究 Vol.41 No.-

KORUS-FTA are consist of articles 8. In order to the subjects are, application of a safeguard measures, conditions and limitations, provisional measures, compensation, global safeguard actions, definitions, antidumping and countervailing duties, committee on trade remedies. In especially, regarding application of a safeguard measures under KORUS-FTA, if as a result of the reduction or elimination of a customs duty under this agreement, an originating good of the other party is being imported into the territory of a party in such increased quantities, in absolute terms or relative to domestic production, and under such conditions that the imports of such originating good from the other party constitute a substantial cause of serious injury, or threat thereof, to a domestic industry producing a like or directly competitive good, the party may: suspend the further reduction of any rate of customs duty on the good provided for under this agreement; increase the rate of customs duty on the good to a level not to exceed the lesser of: the most-favored-nation (MFN) applied rate of duty on the good in effect at the time the action is taken; and the MFN applied rate of duty on the good in effect on the day immediately preceding the date this Agreement enters into force; or in the case of a customs duty applied to a good on a seasonal basis, increase the rate of duty to a level that, for each season, does not exceed the lesser of: the MFN applied rate of duty on the good in effect for the corresponding season immediately preceding the date of application of the safeguard measure; and the MFN applied rate of duty on the good in effect for the corresponding season immediately preceding the date this agreement enters into force.

국제물품매매에서 물품의 계약적합성에 관한 연구

오현석(Hyon Sok OH) 한국무역상무학회 2015 貿易商務硏究 Vol.66 No.-

The purpose of this paper is to provide a legal implication about conformity of goods in the international commercial transactions. There are so many legal relationship after the formation of contract. The most of important thing among the obligations of seller is to provide conformal goods which are of quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. If seller violate above duties, seller take the warranty liability. However, CISG describe the conformity of the goods instead of the warranty as follows. First, CISG Art.35(1) states standards for determining whether goods delivered by the seller conform to the contract and Art.35(2) describes standards relating to the goods' quality, function and packaging that, while not mandatory, are presumed to be a part of sales contracts. Article 35(2) is comprised of four subparts. Two of the subparts (article 35(2) (a) and article 35(2)(d)) apply to all contracts unless the parties have agreed otherwise. Second, CISGArt.36 and 38 deals with the time at which a lack of conformity in the goods must have arisen in order for the seller to be liable for it. If seller lack of conformity becomes apparent only after that time, seller is liable for a lack of conformity existing when risk passed to the buyer. Third, CISG Art.49 describe that a buyer who claims that delivered goods do not conform to the contract has an obligation to give the seller notice of the lack of conformity. The most of important things about CISG articles and precedents is that buyer is aware of the lack of conformity and notice it to seller. Failure to satisfy the notice requirements of article 39 eliminates a buyer's defence, based on a lack of conformity in delivered goods, to a seller's claim for payment of the price. Consequently, parties of contract had better agree to the notifying times about lack of conformity. Also, If seller fined the non-conformity, seller has to notify this circumstance to the buyer within short period or agreed time.