개정 미국통일상법전(UCC) 제2편(물품매매)의 비교법적 고찰 : 서식전쟁(Battle of Forms) 부분을 중심으로

정홍식(Hong-Sik Chung) 한국비교사법학회 2010 比較私法 Vol.17 No.2

The American Law Institute and the National Conference of Commission on Uniform State Laws amended Article 2 of the Uniform Commercial Code in 2003. One of the most urgent and challenging tasks the sponsoring organizations undertook in amending the Sales Article of the Code was to revise UCC section 2-207, the “battle of the forms” section that will live in infamy. In revising the original statute (hereinafter referred to as UCC-O section X-XXX), the drafters decided to move the rule stated in UCC-O section 2-207(1) to revised section 2-206(3) (hereinafter referred to as UCC-R section X-XXX), so that all of the standards governing formation of a contract for sale by acceptance of an offer are now collected in UCC-R section 2-206. In the proposed amendment of Article 2, a revised section 2-207 replaces subsections (2) and (3) of UCC-O section 2-207. The sole province of UCC-R section 2-207 is to identify the terms of a contract for the sale of goods. The language of UCC-R sections 2-206(3) and 2-207 and the proposed Official Comments to those sections improves upon the language of UCC-O section 2-207 and its Official Comments. Adoption of the revised statute will make much of the case law and scholarly commentary interpreting the original statute obsolete. Despite the improvement, however, the language of UCC-R sections 2-206(3) and 2-207 still does not provide sufficiently clear and thorough guidelines for resolving the questions of sales contract formation and content that those sections address. This article provides a overview of the relevant original statutes in a critical manner and then provides an evaluation of revised UCC sections 2-206(3) and 2-207. Part of the evaluation dentifies the many ways in which language of the revised statutes improves upon the language of their predecessor. The evaluation also suggests how the text of UCC-R sections 2-206(3) and 2-207 might be further revised or interpreted in order to provide needed guidance when the revised statute are adopted. In addition, this article provides a short comment of the equivalent sections in both UN Convention on the Contract for International Sale of Goods (CISG) and UNIDROIT Principles on International Commercial Contract (PICC) as to the changed acceptance.

헤이그 국제상사계약 준거법 원칙

정홍식(Chung Hong Sik) 법무부 국제법무정책과 2015 통상법률 Vol.- No.125

In 2015, Hague Conference on Private International Law finally approved “Hague Principles on Choice of Law in International Commercial Contracts”(hereinafter, the “Principles”) and issued its official commentary on them. The Principles have fully adopted the principle of party autonomy, which is considered to be the most practical solution for conflict of laws in international contracts. Therefore, they allow the parties to choose a neutral law which has nothing to do with them and their transactions, and provide a practical solution for “battle of forms” matter. Both courts and arbitral tribunal are invited to apply the Principles, which is the first ever attempt in legal instruments. All articles have been drafted for use by courts and arbitral tribunal. Nonetheless, the Principles set out the limits on the general autonomy principles. The most important limitations to party autonomy are contained in Article 11. Article 11 addresses limitations resulting from overriding mandatory rules and public policy (ordre public). This article examines each provision of the Principles, compares them with Korean private international law and arbitration law, and tries to shed light on a few things to be reflected on the Korean relevant laws. The Principles provide rules only for situations in which the parties have made a choice of law (express or tacit) by agreement; they do not provide rules for determining the applicable law in the absence of party choice. This limitation of the scope of the Principles does not preclude the Hague Conference from developing rules at a later date for the determination of the law applicable to contracts in the absence of a choice of law agreement. From Korean perspective, there are only a few articles to be taken into account for adoption into Korean laws because Korean laws either already contain most articles of the Principles or would be similarly interpreted with them. Particularly, our position should be more clarified as for Article 3 (rules of law), Article 6 (agreement on choice of law and battle of forms), and Article 11 (overriding mandatory rules and public policy). The Principles’ positions over the three articles should be more carefully examined and determined whether we would adopt fully or partially them or not.

미국 독점금지법 준수를 위한 “반독점법 준수프로그램(Antitrust Compliance Program)”의 효용성과 그 내용에 대한 실무적 고찰

정홍식(Chung Hong-Sik) 중앙대학교 법학연구소 2006 法學論文集 Vol.30 No.2

It was a striking news that U.S. Department of Justice(“DOJ”) imposed criminal sanctions against the Korean firms, Samsung Electronics and Hynix Semiconductor, for the price fixing of DRAM occurred in outside of the United States. The criminal sanctions included imposition of the fines of $300million and $185million on the two firms respectively, substantial amount of fines on the firms" executives and employees, and the individuals" agreement of being imprisoned in U.S. jail for several months. Further, civil lawsuits are followed by customers and other competing U.S. companies against the two firms to recover their loss up to three times which the Antitrust law allows. Additionally, it was recently reported that Samsung Electronics and LG-Philips.LCD, which are globally leading companies supplying LCD panels worldwide, were placed in investigation by DOJ for alleged price fixing. It is anticipated that a nature of possible criminal sanctions against the two firms will be no less than what Samsung and Hynix received from DOJ. Accordingly, in light of severity of the criminal sanctions for violation of U.S. Antitrust laws, globally leading Korean companies should be fully aware of core of U.S. Antitrust laws and undertake appropriate steps to prevent similar violations in the future. This article is written to introduce the effectiveness of Antitrust Compliance Program (“ACP”) for observance of U.S. Antitrust laws. The principal objective of ACP in any company is to reduce the likelihood that antitrust violations will occur in the future. To achieve the objective of reducing antitrust violations, ACP must familiarize company managers and employees with the “red flags” of antitrust laws, that is, those recurring situations which present the gravest risk of antitrust violation. By learning to recognize the “red flags” situations, company managers will be better prepared to avoid the dangers they present. Another objective of ACP is to encourage the company managers and employees to question when in doubt. It is not the purpose or function of ACP to turn a company"s employees into half-baked antitrust law “experts.” The best ACP is one that provides company managers and employees a variety of opportunities to ask questions and encourage them to seek counseling about real situations they encounter in everyday business practice. Obviously, the principal benefit of ACP arises when the program actually works. A successful program prevents violations from ever occurring in the first place, and the organization and its officers are never faced with felony prosecution and conviction. The firm with a successful program does not have to worry about the burden, disruption, and costs of an antitrust investigation or litigation. Further, the firm also does not have to worry about treble-damage awards to private plaintiffs, treble antitrust or false claims damage awards to the government. While ACP benefits an organization most when it successfully prevents managers and employees from violating the antitrust laws, even a failed compliance program may create significant opportunities and benefits for the organization. Those opportunities and benefits flow from a compliance program"s early detection of a violation. With the adoption of the guidelines for the sentencing organizations found in Chapter Eight of the U.S. Sentencing Guidelines, effective November 1, 1991, compliance programs now play a more important role than ever-not only in prevention and sentence mitigation, but also in providing the organization with the opportunity for obtaining favorable treatment from the government. As a complete pass from prosecution, the Amnesty Program(also known as Corporate Leniency Policy) offered by DOJ should be considered. If a compliance program fails to prevent a violation, but enables the organization to detect the viola

해외건설프로젝트에서 동시발생 공기지연(concurrent delay)

정홍식(Hong-Sik CHUNG) 한국비교사법학회 2014 비교사법 Vol.21 No.2

최근 해외 건설현장에서는 동시발생 공기지연(concurrent delay)을 둘러싼 이견과 클레임 및 법적분쟁이 상당하다고 한다. 동시발생 공기지연은 시공자의 이행지체와 발주자의 책임하에 있는 사유가 동지적으로 발생하여 공기지연을 야기한 경우를 말한다. 그러한 상황에서 시공자는 공기연장을 부여받을 수 있는지 그리고 그로 인해 증액된 현장관리비용의 책임은 어느 당사자가 지는지를 분석하는 것이 본고의 목적이다. 본고는 이러한 쟁점들을 주로 다루고 있는 영미법계의 접근방식을 비교 고찰하고 있다. 일단 영국에서는 방해이론(prevention principle)에 따른 해결방식으로 시공자에게 공기연장만을 부여하고 연장된 기간 동안 발생하는 추가 현장관리비용은 보상하지 않고 있다. 반면 미국에서는 공기연장만을 부여하는 접근방식과 아울러 당사자 간 원인사유들이 각기 분리되어 각자의 책임을 따로 명확히 정할 수 있는 경우에는 책임배분의 접근방식 두 가지가 공존하고 있다. 국내 법원의 입장에서는 동시발생 공기지연을 정면으로 다룬 판례는 없으나, 기존 대법원 판례의 입장은 도급인과 수급인의 책임을 배분하고 있기 때문에 동시발생 공기지연의 경우도 그러할 것으로 예상된다. 이러한 다른 접근방식 중 우리나라 건설사들에게 유리한 것은 영국식인 것으로 보인다. 즉, 시공자 입장에서는 전체 공기지연 동안의 공기연장을 부여받는 것이 책임배분 원칙에 따라 일부 공기지연에 대한 지체상금을 무는 것 보다 유리하다고 본다. 그러나 당사자들이 동시발생 공기지연에 관해 계약상 명시적으로 합의한 바가 있다면 그것이 준거법 상의 접근방식보다 우선시 된다. 때문에 영국의 SCL Protocol의 관련 조문들을 참조하여 계약협상과정에서 이를 적극 반영할 필요가 있다. 그리고 시공자는 동시발생 공기지연의 상황임에도 공기연장을 제대로 받기 위해서는 제대로 된 계약관리를 통해 동시발생 공기지연 상황임을 증빙해야 할 것이다. The purpose of this article is to discuss, from views of common law systems, the diverse approaches to employer's and/or contractor's claims arising out of concurrent delay in the execution of construction projects. The matter of concurrent delay is highly controversial and has been a critical issue in oversea construction projects. The expression of "concurrent delay" is usually defined to denote a period of project overrun which is caused by two or more effective causes of delay which are of approximately equal causative potency. In England, the prevention principle still applies in case of concurrent delay unless the contract expresses a contrary intention. Thus, the contractor receives a full extension of time for any act of employer's prevention even if there existed the contractor's own default. In the United States, the US courts offer two approaches: (i) time but no money; or (ii) apportionment. The roots of 'time but no money' are traceable to the earliest US concurrent delay cases when a strict 'rule against apportionment' applied. However, modern US courts will apportion the recovery of delay costs or damages when the evidence permits the segregation of costs arising from the parties' respective causes. Thus, recovery will be denied if the segregation of delay is impossible. The US courts allow these two approaches to co-exist. From Korean construction companies' standpoint, the England approach might be preferred than the apportionment approach in the event of concurrent delay. Thus, Korean companies should attempt to include such languages of 'time but no money' into the construction contract in the course of contract negotiation. Further, they should more pay attention to the contract management during construction stage so as for them to secure more reliable evidences when they have to prove the occurrence of concurrent delay.

국제건설계약에서 공사변경(variation)에 따른 공사범위(scope of works)의 계약해석 -영국판례를 중심으로-

정홍식 ( Hong Sik Chung ) 법조협회 2016 法曹 Vol.65 No.2

International construction contracts will define the scope of works that the contractor is required to undertake in exchange for an ascertainable contract price. In determining whether there is a variation, it will be necessary to consider whether the work under review was part of that original scope. There is no requirement for an employer to issue instructions directing the work, which already forms part of the contract scope. In the event, however, the work needs to made beyond the scope of work, such employer’s instruction should be made that may result in impact of duration and price of the contract. However, the definition of what is to be built may not be fully developed and articulated in the contract documents. Thus, ascertaining what constitutes the contract scope of works, against which variations will be judged, involves not only an analysis of the description of the works contained in the technical documents, such as specification and drawings; it is also a matter of considering the risks that the contractor has assumed under the contract. The technical description of the works as contained in the contract documents will often contain ambiguities, gaps and contradictions. In order to determine the correct extent of the contractor’s obligations, it will be necessary to apply the principles of contract interpretation. This article deals with the matter of contract interpretation in light of assessing the scope of works by focusing on relevant England cases as many international construction contracts have English law as a governing law. Some England cases may provide good practical guidances for Korean contractors when they negotiate and adopt the construction contracts.

實務硏究(실무연구): FIDIC 건설표준계약에서 엔지니어의 이중적인 역할과 책임- 발주자의 대리인? 조정인? 또는 공정한 결정자? -

정홍식 ( Hong Sik Chung ) 법조협회 2015 法曹 Vol.64 No.8

FIDIC 건설표준계약에서 계약당사자는 아니지만 때로는 프로젝트 자체의 성패를 좌우하기도 하는 엔지니어라는 중요한 주체가 존재한다. 엔지니어는 발주자의 대리인으로 선임되어 계약상 당사자들로부터 수여받은 권한을 행사하며 계약관리를 주도하는데, FIDIC 조항에서는 엔지니어가 발주자와 시공자 간 이견에 대한 조정인(mediator) 역할을 하도록 되어 있고, 만일 조정이 실패하면 해당 사안에 대해 공정한 결정자(adjudicator)의 역할을 하도록 하고 있다. 문제는 발주자의 대리인이면서 발주자로부터 보수를 지급받는 엔지니어가 과연 ``공정한 결정``을 내릴 수 있느냐이다. 영미법계에서는 이러한 엔지니어의 이중적 역할을 유효하게 인정하고 있으나, 몇몇 대륙법계에서는 그러하지 아니하다. 본고에서는 건설사들이 해외건설프로젝트에서 많이 오인하고 있는 엔지니어의 이중적 역할 및 그 문제점에 대해 FIDIC의 관련 계약조건들을 중심으로 조명하고자 한다. 그리고 국제건설계약의 준거법으로 종종 지정되는 영국법상 엔지니어의 발주자에 대한 책임 및 시공자에 대한 책임부분도 검토한다. The engineer works for the employer - he is appointed by the employer, he is the prolonged arm of the employer, whilst at the same time playing the role of a third party mediator and/or adjudicator. What we have is a person who is appointed essentially as an agent, but then circumstance arise which require him to stand back, hold the balance between the parties, try to mediate between them and even arrive at a fair decision. He might have to make a decision which goes against the person who appointed him and which is in direct relation to work he himself has done. The engineer is thus a very powerful person which is also referred to as a decision-maker, a function which requires a certain degree of impartiality and fairness from him. Such a concept as the engineer``s dual roles is, however, not familiar to civil law system. A certain civil law jurisdiction invalidates such a weird role of engineer. It is the entity that is discussed in this article. This article comprehensively examines the engineer related clauses under FIDIC construction model forms, including but not limited to the engineer``s duties and powers, delegation of its powers to assistants, the engineer``s instructions, and replacement of the engineer. This article also analyze the engineer``s dual roles under the clause 3.5 of FIDIC in which the engineer is supposed to act as a mediator prior to determining various issues brought by contractor and employer. In addition, this article deals with the engineer``s possible liabilities both to the employer and the contractor. The engineer can obviously be contractually liable to the employer based on terms and conditions of their contract adopted. Further, the engineer might be negligently liable to the contractor as the former has a duty of care owed to the latter in the course of its performances. The engineer is liable to the contractor not only for breach of warranty of authority but a fraudulent misrepresentation upon which the contractor has relied and thereby suffered damage, and the engineer is liable to the contractor for any refusal to certify or incorrect certification which is fraudulent and collusive or corrupt. Lastly, in the event the contractor has a possible cause of action in tort against the engineer, this article covers the issues of which court has a jurisdiction and which law should be applicable.

국제상사계약 체결에서 중재합의조항에 관한 실무적 고려사항

정홍식(Chung Hong Sik) 법무부 국제법무정책과 2014 통상법률 Vol.- No.115

The dispute resolution clause is usually found near the end of a contract, alongside such items as addresses for serving notices and other general provisions. It may ultimately prove to be the most important provision of all. Rights and obligations carefully defined elsewhere in the contract are only as reliable as the courts or tribunals called upon to give effect to them. Underlying the arbitration process in almost every case will be an agreement to arbitrate, through which the parties convey not just their willingness to have their dispute resolved by arbitration, but also aspects of the process which they wish to adopt. In light of this, ensuring an effective arbitration clause that reflects the parties' needs and wishes is a crucial step in the process. With astonishing regularity, however, international contracts contain defective dispute resolution clauses. Even lengthy and complex agreements, drafted by negotiators whose understanding of everything else is highly sophisticated, often reflect ignorance of the mechanisms of international dispute resolution. This article is designed to help achieve effective arbitration clause which unambiguously embody the parties' wishes. It reflects understandings of the best current international practices and provides both a framework and detailed provisions for drafters of international arbitration clauses. Thus, this article generally provides the essential elements of an effective clause and what features of the process are open to parties to determine in advance. It also informs parties both of the choices available and the pitfalls to avoid. This article tackles some of the more complex drafting issues which arise when an arbitration agreement goes beyond the typical bipartite arrangement and involves multiple parties and/or a range of related contractual agreements. Further, it deals with the special drafting considerations that arise when mainland China is either the place of arbitration or the place of possible enforcement of an arbitral awards. As a result, this article is applicable and appropriate not just for simple, straightforward arbitration clauses, but also for the most complex, and indeed the spectrum between the two.

국제물품매매협약(CISG)의 본질적인 계약위반 관련 국내 법원 판례 평석 - 2010년 이후의 주요 판결들을 중심으로

정홍식(Hong-Sik CHUNG) 법무부 국제법무정책과 2021 통상법률 Vol.- No.153

6분력 힘/모멘트 발생장치 개발 및 평가

정홍식(Hong Sik Chung),주진원(Jin Won Joo) 대한기계학회 2016 大韓機械學會論文集A Vol.40 No.7

본 논문에서는 다축 로드셀의 특성을 평가할 수 있는 실하중 6분력 힘 및 모멘트 발생장치를 개발하였다. 정확한 힘과 모멘트를 발생시키고 각 분력 간의 상호 작용 오차를 최소화하기 위해 몇 가지 새로운 방법을 도입하였다. 제작된 힘/모멘트 발생장치의 신뢰성을 검증하기 위하여 상용 토크셀과 본 논문에서 고안하여 제작한 양단 고정보 형태의 측정장치를 이용하여 모멘트 발생 방법을 평가하고 하중 간의 상호 측정을 수행하였다. This paper presents the development of a deadweight type 6-component force/moment generator for estimating characteristics of multi-component loadcell. Several new methods in moment generation are introduced in order to produce accurate force / moment and to minimize coupling effect between each force or moment components. In order to verify the reliability of the calibration system developed, estimation of the method for generating moment components and cross measurements between force or moment components are carried out utilizing a commercial torque cell and both-ends fixed beam designed in this paper.

6 축 F/T 센서 특성시험장치 평가

정홍식(Hong Sik Chung),주진원(Jin Wom Joo) 대한기계학회 2013 대한기계학회 춘추학술대회 Vol.2013 No.5