EU 탈퇴 의사 통고의 철회 관한 유럽연합 사법재판소 Wightman and Others 판결의 함의: EU법에 대한 국제법의 적용 문제를 중심으로

고영노(Ko Young Lo) 법무부 국제법무정책과 2020 통상법률 Vol.- No.146

국제투자협정상 `국내법 부합규정`에의 위반성

김석호 법무부 국제법무정책과 2017 통상법률 Vol.- No.135

국제재판관할결정의 지도원리

이정원(JUNG WON LEE) 법무부 국제법무정책과 2013 통상법률 Vol.- No.112

As section 2 of the Korean Private International Act (hereafter, KPIA) requires a substantial connection between the parties of the dispute and the dispute itself as a basic principle for the distribution of jurisdiction among nations, there should be a real relation between the parties of the dispute and the case for the justification of Korean Court's excise of its power over the case. Upon determining whether there is a substantial connection between the case and the parties or not, the court must vest full consideration over the surrounding circumstances and its ruling shall base on the reasonable principles for the distribution of judicial powers. For each case, a question whether there is a substantial connection shall be ultimately decided by whether it is legitimate for courts to recognize some connecting factors, e.g., domicile as its jurisdictional basis or not. In addition, when courts decide the above issues, they must consider personal interests, e.g. full faith and credit, convenience, and predictability as well as public or national interests. Taking into account all the facts that the trial in a Korean court might exceed the defendant's predict that the case would be tried in Chinese courts, that the essence of the case was limited to scope of compensation for the damage, and that the governing was Chinese law, it is commentator's view that China was a more reasonable venue for the trial of this case than Korea. Furthermore, when we consider the governing law and the nature of this case, it is questionable what kinds of national interests Korea has by the trial of this case in Korean courts. Considering the basic rules of jurisdiction to adjudicate that transnational dispute shall be settled with efficiency and with uniformity to serve for the harmony of international society, the Korean Supreme Court, in this case, must have taken a closer look at the matters with a wider perspective, as Korea is a member of international society. Even if there is a substantial connection between the parties and the reality of this case, the Korean Supreme Court should have dismissed this case for the reason that Korea is a non-convenient forum because; ① jurisdiction to adjudicate can be co-exist in Korea and China, ② the governing law was a Chinese law and the main issues were restricted to the amount of damage to be paid, ③ both parties of this case were Chinese citizens and there were no objections regarding cause of action, requisite for establishment of tort.

제79차 유엔국제상거래법위원회 제2실무작업반 논의 동향

박재성,윤찬혁 법무부 국제법무정책과 2024 국제법무연구 (통상법률) Vol.- No.163

국제상사중재에서 분쟁의 실체의 준거법으로서 CISG의 적용

문화경 법무부 국제법무정책과 2013 통상법률 Vol.- No.112

It is not hard to find conflict of laws situations in disputes arising out of international business transactions because those disputes involve transnational issues per se. To decide governing laws of substantive matters is critical in international commercial arbitrations. Generally, in contract disputes, party autonomy has priority in choice-of-law decisions. But when there is no express or implied choice of law agreement between the parties, private international law rules will decide the law governing substantive issues generating various related matters. As the number of the member states of United Nations Convention on Contracts for the International Sale of Goods (1980) (CISG) is constantly increasing, the convention is becoming an important landmark in international business transactions. Accordingly, CISG would be the first option for arbitrators or arbitral tribunals as the applicable substantive law. If parties expressly or impliedly choose the CISG as the substantive governing law in international commercial arbitration, the CISG applies to the substantive issues of the conflict at hand. Also, if parties never agreed on applicable laws to the conflict, arbitrators or arbitral tribunals can choose the CISG as the governing law under various choice-of-law rules. To decide the CISG as the governing law of the substantive issues in dispute resolution, related provisions in the CISG Part I Chapter I and Chapter 2 should be carefully examined to check whether the present contractual dispute fulfills the basic legal requirements for the applicability of the CISG. The final provisions in the CISG Part IV, in particular, should be reviewed comprehensively in relation to the provisions in the CISG Part I. The application of the CISG as the substantive governing law in international commercial arbitration often brings out complicated theoretical problems of private international law. Nevertheless, the CISG is regarded as the most successful commercial law treaty in the world having the purposes, such as the adoption of uniform rules for the international sale of goods contracts, the removal of legal barriers in international trade due to different social, economic and legal systems, and the promotion of international trade. Therefore, the CISG can be ultimately expected to provide optimum solutions for parties to the contracts for the international sale of goods.

국제매매계약위반에 대한 구제방법으로서의 대체거래에 기초한 손해배상

김인호(Kim Inho) 법무부 국제법무정책과 2013 통상법률 Vol.- No.109

When a contract has been avoided because of a breach, the aggrieved party may engage in a substitute transaction. The United Nations Convention on Contracts for the International Sale of Goods(CISG) article 75 provides that an aggrieved party may recover damages measured by the difference between the contract price and the price in a substitute transaction if the original contract has been avoided and if the substitute transaction was concluded in a reasonable manner and within a reasonable time after avoidance. Article 75provides for the “concrete” measurement of damages, eliminating the need for the aggrieved party to prove the market price for the goods. This concrete method for calculating damages is preferred to improve legal certainty of the parties and thus to promote international trade. CISG has entered into force in 78 countries including Korea’s major trading counterparts. Also CISG entered into force in Korea on March 1, 2005. It is not surprising that this paper has identified Korean court decisions measuring damages by the difference between the contract price and the price in a substitute transaction. This paper focuses on the prerequisites of the concrete measurement of the damages and legal consequences of failing to satisfy the prerequisites. Therefore, this paper could contribute to promoting Korean courts’ clear understanding of the prerequisites of the concrete measurement of the damages as well as to enhancing legal certainty of the parties concerned.

일본과 미국의 대립적 - 협조적 통상정책의 기원과 전개

김영근(Kim Young-geun) 법무부 국제법무정책과 2012 통상법률 Vol.- No.106

This paper focuses on the development(and the process of divergence and convergence) of the relation between Japan and U.S. in trade policy through a case study on the ‘Omnibus Trade Competitiveness Act of 1988’ and the ‘Uruguay Round Implement Act’ Negotiations under the GATT/WTO regime. The purpose of this paper is to consider the historical origin of U.S. and Japan's confrontational(oppositive) Trade Policy under the GATT regime and analyzing the enactment process 'Omnibus Trade Competitiveness Act of 1988'. Also, through analysis of America's establishing process of 'UR Implement Act', examine the Section 301 system of U.S. and WTO to analyze the cooperative trade relations between U.S. and Japan. First, I will examine the ‘Omnibus Trade Competitiveness Act of 1988’(U.S. legislature) to investigate the reinforcement process and changes the Section 301 in the 1980s. Specifically, focuses on the Super 301. in the legalization process of the 'Omnibus Trade Competitiveness Act of 1988'Second, during the legalizing process of ‘Uruguay Round(UR) Implement Act’, it is key to investigate the relationship between the Section 301 and diffuse reciprocity of GATT/WTO. As we all know, reciprocity of U.S. in trade policy changed over during the process in ‘Omnibus Trade Competitiveness Act of 1988’ and UR negotiation(ratification). In other words, a fundamental principle of reciprocity in U.S. trade policy has returned to the principle of reciprocity of GATT/WTO after the establishment of World Trade Organization(WTO). In hoc, I will prove the process of 'UR Implement Act', which became the leverage of restricting United States’ arbitrarily usage of the Section 301 and switch from special reciprocity to diffuse reciprocity. Also I will show that Japanese trade politics in WTO dispute settlement has changed much from the GATT days. Because during its early WTO disputes Japan made sure that U.S. unilateralism would be deterred by a threat of WTO litigation.

국제물품매매협약(CISG)의 본질적 계약위반과 신용장 개설의무위반

이헌묵(LEE HUN MOOK) 법무부 국제법무정책과 2014 통상법률 Vol.- No.119

The first Supreme Court ruling (Supreme Court 2013.11.28. ruling 2011da103977) applying the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) is concerned with fundamental breach of contract under Article 25 of the CISG and the seller’s right to avoid the contract under Article 64 of the CISG. According to this ruling, a buyer adding conditions to a documentary credit that were not previously agreed to by the seller constitutes fundamental breach of contract and, therefore, the seller is entitled to avoid the contract under Article 64. I agree with the court’s ruling because adding conditions that were not previously agreed to eventually burdens the seller. Considering the significance of the CISG, however, the Supreme Court should have suggested specific elements for the fundamental breach of contract. It is important that legal status of opening documentary credits in CISG which are often used in the international sale of goods should be precisely stipulated. On the other hand, the Supreme Court stated that the mere delay in opening documentary credits did not constitute a fundamental breach of contract. However, it did not specify the reason for that result. In my opinion, different conclusions may be drawn from specific cases rather than only one conclusion such as the Supreme Court’s ruling. In short, documentary credits must be opened within a certain time before the shipment date; otherwise, it constitutes a fundamental breach of contract because documentary credits are a precondition for shipment preparation by the seller.

FTA 투자규칙상 세이프가드조치에 관한 연구

김인숙(KIM INSOOK) 법무부 국제법무정책과 2012 통상법률 Vol.- No.107

The purpose of the temporary safeguard measures is to maintain a balance of international payments and to stabilize the value of currency by limiting the liberalization of foreign exchange transactions. So the FTA Investment Rules, Korea concluded, limit foreign firms’ transfer of funds to their homes under the temporary safeguard measures. For applying the safeguard measure stipulations of the FTA Investment Rules, the Foreign Exchange Transaction Act stipulates the safeguard measures for capital outflow. The imposition of such measures is to be complied with the procedures and specified conditions stipulated in the Articles of the Foreign Exchange Transaction Act. Under the Foreign Exchange Transaction Act, Korea can take measures as provided in the following paragraphs: i) Temporary suspension of payment, receipt, or the whole or a part of transactions to which this Act applies, ii) Imposition of obligations to safe keep, deposit or sell means of payment or precious metals in or to the Bank of Korea, government agencies, the foreign exchange equalization fund, or financial institutions, iii) measures to place any person who intends to perform capital transactions under an obligation to obtain permission or any person who performs capital transactions under an obligation to deposit part of means of payment acquired in such transactions in the Bank of Korea, the foreign exchange equalization fund or other financial institutions. But the temporary safeguard measures shall not restrict payments or transfers associated with foreign direct investment under the Foreign Exchange Transaction Act, and payments or transfers for current transactions stipulated in the Agreement of the International Monetary Fund. Therefore, it is not complete to apply the safeguard measures for capital outflow under the Foreign Exchange Transaction Act to maintain the a balance of international payments in the currency crisis situations. Also the safeguard measures regulations under the Foreign Exchange Transaction Act does not correspond with specified conditions stipulated in the FTA investment rules. To maintain balance of international payments in currency crisis situation, it is necessary to make partial amendment to the safeguard measures regulations in the Foreign Exchange Transaction Act.

UN의 온라인분쟁해결(ODR)에 관한 국제규범정립을 위한 논의 및 전망과 그 향후 과제

남유선(Nam You-sun),윤민섭(Yun Min-seop) 법무부 국제법무정책과 2016 통상법률 Vol.- No.127

With the rise of the internet, cross-border e-commerce transaction endowed both businesses and consumer convenience; however, it also triggered various issues as well. Despite the various problems, there is no set procedural rule to solve such online disputes. Indeed, general methods to resolve disputes such as negotiation, facilitated settlement, arbitration, trials may also be used for international dispute resolution. However, general dispute resolution procedures are focused on offline, and there are many problems regarding online trade disputes such as jurisdiction and cost. Therefore, it is not suitable for resolving cross-border e-commerce transaction disputes dealing with low-value transactions. Especially the cost is the issue. Dispute resolution cost becoming larger than the transaction cost is the problem. To solve these kinds of issues, in 2010 UNCITRAL (United Nations Commission on International Trade Law) commission conference, Working group III (WG III) received the duty to set the international rule (standard) for Online Dispute Resolution Procedural (ODR). From December 2010, 22nd session, WG III started the session to make the ODR regulations. Currently, the session has been held to the 32nd session and the final results for the ODR are projected to come out in the February 2016 33rd session. Due to the characteristic of international conferences, along with the specific contents of the regulations, the entire system may be modified during the discussion. Although there is only one session left (the 33rd session) for the WG III, the contents may be altered anytime. Therefore, in this study, we will look at the discussion changes so far, and the contents of the technical notes (UNCITRAL guideline) proposed by the United States of America on the 32ndsession.