중국 중재조정의 적법성에 관한 연구

이경화(Jing Hua LI),서경(Kyeong SEO) 한국무역상무학회 2016 貿易商務硏究 Vol.69 No.-

According to Chinese Arbitration Law, combination of mediation with arbitration means that in the process of arbitration, arbitrator may conduct mediation proceedings for the case they are handling, provided both parties agree to do so. If mediation succeeds and the parties reach a settlement agreement, the arbitrators may render a consent award or a written mediation statement in accordance with the contents of the settlement agreement. If mediation fails, the arbitration proceedings will be resumed until the case is concluded by making of an arbitral award. There is no formal name of this system in China, it is called “combination of mediation with arbitration”, “mediation in arbitration process” or “arbitration-mediation”, the author of this thesis select “arbitration-mediation” and make it simply as “Arb-Med”. This thesis concentrates on three issues that arbitrators and the parties have to clarify and pay attention to once they choose to use Arb-Med. The first part is about the ‘waivable problems’, include waive the right to challenge a arbitrator who act as amediator at the same time with parties’ approval, As well as the question about the waiver of the arbitrator's duty to disclose confidential information obtained during mediation. The second part is ‘public policy in Arb-Med’, introduces the concept of public policy, the bias may arise the complaint about public policy, and the due procedure problem. And the last part is about the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, especially about the award including some contents which has relation to third party’s interests.

미국의 대중 정책이 일대일로 전략의 추진에 미치는 영향

이경화(Jing-Hua LI) 한국무역상무학회 2023 貿易商務硏究 Vol.98 No.-

2018년에 본격적으로 시작된 미중 무역전쟁은 관세전쟁으로 시작하여 오늘날 기술패권 다툼으로 발전하였고 중국의 패권국으로의 부상을 견제해야 하는 미국은 중국이 경쟁력을 잃을 때까지 무역전쟁을 멈추지 않을 것이다. 게다가 2013년 시진핑이 발표한 일대일로 구상은 미국의 패권에 정면으로 도전하는 장기 전략이기에 미국이 중국을 견제하는 다양한 정책들을 실행하게 되면 중국의 일대일로 전략에 영향을 미치게 된다. 본고에서는 중국에 대한 미국의 견제들을 구체적으로 살펴보고 이러한 견제들이 중국의 일대일로 전략의 발전에 어떠한 걸림돌이 되는지를 분석한다. 또한 미국의 견제에 중국이 어떻게 대처하고 있는지도 살펴본다. The United States is banning the export of materials and equipment to China, including core technologies, and forcing its allies to participate in order to restrain Chinas technological rise. It is trying to isolate Chinese technology with In addition, it is implementing policies to exclude China from the global value chain by diversifying industries and value chains that are highly dependent on China. These US sanctions are hindering China in many ways from pursuing its One Belt, One Road strategy. Due to the technology decoupling policy, the development of Chinas core technology companies is inevitable, and the government has not been able to reveal and promote “Made in China 2025”. In addition, Chinas digital silk road strategy in the Belt and Road should be based on technological development in mainland China, but the pace of core technology development is not gaining momentum. Furthermore, US sanctions hurt or tarnish Chinas image, causing countries along the Belt and Road to lose trust and confidence in China. In the face of US sanctions and aggression, China is making various efforts to promote the Belt and Road Initiative without disruption. Against the US technology decoupling strategy, China requires the state to fully invest and develop technology to achieve technological independence, and is promoting economic development with a Dual circulation strategy against the US Post-China Policy.

중국의 상사중재관할권에 관한 연구

이경화(Li, Jing Hua) 한국무역상무학회 2014 貿易商務硏究 Vol.63 No.-

With the development of Chinese commercial arbitration, there have been a large number of cases regarding the parties raised objection to the jurisdiction in arbitration and judicial practice. The argument relating to dealing with the subject matter, time limitation, identified subject of arbitration objection to the jurisdiction as well as the inadequate of Chinese Arbitration Law and relevant judicial interpretations has caused adverse impact on the conduct of the arbitration proceedings. This paper firstly look ar the overview of the arbitration jurisdiction objection, mainly on the arbitration jurisdiction objection determination and what is arbitration jurisdiction objection. The raise and abandonment of the arbitration objection to jurisdiction then will be analyzed in terms of subject, form, time and the legal consequences of giving up. The third part illustrates the handling of arbitration jurisdiction objection, main body, practices, procedures and whether the arbitration objection to jurisdiction is established. And the last part discuss how the condition of effectiveness on the arbitral agreement applies to through Chinese cases. Finally, the author suggests some cautions and countermeasures relates to arbitration agreement for domestic investors and traders dealing with the Chinese partner.

수익자의 일치하는 제시에 따른 개설은행의 의무에 관한 연구

김용일(Yong-il Kim),이경화(Jing-hua Li) 한국국제상학회 2011 國際商學 Vol.26 No.1

The purpose of this paper is to examine the Issuing Bank's Obligations by Complying Presentation of Beneficiary. The contract between the issuing bank and the beneficiary is the central one in a letter of credit transaction. The main obligation in the contract is the issuing bank's promise to pay the beneficiary provided that the documents presented conform to the requirements of the credit. An issuing bank that fails to accept conforming documents or to honour a complying presentation will be in breach of its promise to the beneficiary under the credit. Even in the case where the documents do not comply with the credit, an issuing bank that does not follow the UCP procedure for examination and rejection of documents will have to treat the documents as complying, and therefore a refusal to take up the documents in these circumstances will amount to wrongful dishonour. Ultimately, the options available to a beneficiary who is faced with a bank's refusal of conforming documents under a credit will depend on what has happened to the documents and goods. If the documents are already with the bank, or if they are still in the possession of the beneficiary, ready to be handed over to the bank in exchange for payment, he should be able to claim damages based on the amount of the credit, plus consequential losses, if any. If beneficiary has credit, but for damages based on his actual losses.

중국의 해외구매대행 현황과 문제점에 관한 연구

오원석(Won Suk OH),이경화(Jing Hua LI) 한국무역상무학회 2015 貿易商務硏究 Vol.65 No.-

With the steady growth of our nation's economy, the purchase power of our domestic citizens has continuously enhanced. In recent years, online overseas shopping has rapidly warmed up, increasing number of Chinese people have started to purchase overseas products via internet. According to China's current legislation, the imported goods are divided into goods and items based on "profitability standard", and regulated by different rules of clearance supervision and import duties. Goods can't pass through custom and pay duties in the form of items, and the import duties burden of goods is generally much heavier than that of items. Goods of entrusted overseas shopping pass through custom and pay duties in the form of items, but goods of profitable purchasing are goods, not items. Therefore, the profitable-purchasing behavior is smuggling. Although goods of unprofitable purchasing are items, unprofitable-purchasing behavior may also constitute smuggling. The author concludes that causes of smuggling crime are: huge market demand for overseas goods, lack of customs supervision, law blank of petty foreign trade, and public's misconception of entrusted overseas purchasing are the major factors. The author proposes the corresponding preventive measures against the crime, such as to establish an one-stop service system in online Shopping Mall, to modify the Passengers' Baggage Declaration Form, to establish a relatively simplified clearance system of small cargo, to establish a relatively reasonable import duties of petty trade.

한.중 국제중재제도의 비교와 시사점

오원석(Oh, Won suk),이경화(Li, Jing hua) 한국무역상무학회 2010 貿易商務硏究 Vol.46 No.-

The rapid growth of Korea-China trade that was since the establishment of diplomatic relations in 1992, led China to surpass the United States and Japan to become Korea's largest trading partner in 2009. "The largest trade" also means "the most disputes", so it is essential to study on dispute settlement and enforcement system of the two. Therefore, in order to make the traders correctly understand and use the arbitration as a dispute settlement method in both China and Korea, this article makes a comparative study on arbitration system between the two countries. And finally, it analyzes the enforcement situation of arbitral award in China, then provides the author's personal recommendations as a countermeasure against the poor enforcement system in China.

중국의 “중재와 조정의 결합” 제도와 시사점

오원석(Won-Suk Oh),이경화(Jing-Hua Li) 한국무역학회 2013 貿易學會誌 Vol.38 No.4

투자협정상 「내국민대우(National Treatment」조항 작성시 유의사항에 관한 연구

오원석(Won-Suk Oh),서경(Kyung Seo),이경화(Jing-Hua Li) 한국무역상무학회 2011 貿易商務硏究 Vol.49 No.-

Clauses on national treatment in the bilateral investment treaties including FTA state that, the foreign investor and his investments are 'accorded treatment no less favourable than that which the host state accords to its own investors'. Hence the purpose of the clause is to oblige a host state to make no negative differentiation between foreign and national investors when enacting and applying its rules and regulations and thus to promote the position of the foreign investor to the level accorded to nationals. As a matter of legal drafting technique, while the basic clause is generally the same, the practical implications differ due to more or less wide-ranging exemptions of certain business sectors. It is generally agreed that the application of the clause is fact-specific. This paper deals with problems in drafting clauses on national treatment in practice, introduces several considerations to adjust the level of national treatment, so it can be made more represents the interest of our country.

국제투자에 있어서 간접수용에 관한 연구

김용일(Kim, Yong Il),이기옥(Lee, Ki Ok),이경화(Li, Jing Hua) 한국무역상무학회 2010 貿易商務硏究 Vol.47 No.-

The contours of the definition of an indirect expropriation are not precisely drawn. In some recent ICSID decision, tribunals have interpreted the concept of indirect expropriation narrowly and have preferred to find a violation of the standard of fair and equitable treatment. Thus, I analyzed the three Requirements of Indirect Expropriation basis of ICSID Cases as below. First, the effect of measure upon the economic benefit value as well as upon the control over the investment will be the key question when it comes to deciding whether an indirect expropriation has taken place. Whenever this effect is substantial and lasts for a significant period of time, it will be assumed prima facie that a taking of the property has occurred. Second, legitimate play a key role in the interpretation of the fair and equitable treatment standard. But they also found entry into the law governing indirect expropriation. Finally, the duration of a government measure affecting the interests of a foreign investor is important for the assessment of whether an expropriation has occurred. Key Words: International Investment Agreements, IndirectExpropriation, ICSID Cases