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A Study on the Legal Character of Contractual Liability in Freight Agency under Chinese Contract Law (중국계약법상 화물운송대리에서의 계약책임과 귀책원칙)

  • KIM, Young-Ju
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.66
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    • pp.119-148
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    • 2015
  • Generally, the liability for breach is defined as the civil liability that arises from the conduct of violation of a contract. There are two notable principles governing liability for breach that have fundamental impacts on the unified Contract Law of the People's Republic of China (hereinafter Chinese Contract Law) in the remedies. In China, during the drafting of the Contract Law, there was a great debate as to whether damages for breach of contract ought to follow the fault principle or to follow the strict liability principle. Ultimately the Chinese Contract Law follows the model of the CISG on this point, namely, it follows the strict liability principle (article 107) with an exemption cause of force majeure. Under Chinese Contract Law, it is interpreted as strict liability in principle. Strict Liability is a notion introduced into Chinese Contract Law from the Anglo-Saxon Law. The strict liability or no fault doctrine, on the contrary, allows a party to claim damages if the other party fails to fulfill his contractual obligations regardless of the fault of the failing party. Pursuant to the strict liability doctrine, if the performance of a contract is due, any non-performance will constitute a breach and the fault on the party in breach is irrelevant. This paper reviews problems of legal character or legal ground of contractual liability in Chinese contract law. Specifically, focusing on the interpretation of Chinese contract law sections and analysis of three cases related contractual liability in freight agency, the paper proposes some implications of structural features of Chinese contract law and international commercial transactions.

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Problem Findings Regarding the Legal Liability of Soil Contaminated Sites in Korea, and it's Policy Suggestion from a Comparison Study to U. S., U K., Germany, Netherlands, and Denmark's Policies (토양오염지역의 책임에 관한 우리 나라, 미국, 영국, 독일, 네덜란드, 덴마크 법과 제도의 비교 분석 및 우리 나라 정책개선방향)

  • Park, Yong-Ha;Park, Sang-Yeol;Yang, Jae-E.
    • Journal of Environmental Policy
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    • v.3 no.2
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    • pp.31-57
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    • 2004
  • Attempts were made to compare and analyze the policies of the United States, the United Kingdom, the Netherlands, Germany and Denmark concerning Korea's major problems associated with legal liability of the contaminated sites. These countries were chosen from a feasible preliminary analysis of 18 countries of the EU and the U. S. The major problems were revealed based on the analysis of Korean legacy and legislation, which are summarized as follows i) lack of clear detailed technical and legal guidance to determine the responsible party or parties of contaminated sites, ii) no distinction between the strict and non strict legal liability of innocent land owners, iii) no clearly set limit on retroactive legal liability. Comparison of the policies of countries chosen suggested improvements regarding these major problems as follows: i) activating national and international research on soil contamination prevention policy, ii) arranging distinct legal regulation between strict and non strict liability criteria, iii) establishing the limits on innocent and non strict liability, iv) establishing methodology and process of legal liability distribution and compensation, and v) establishing a legal process to redeem any benefit derived from remediation of contaminated sites with the public budget. Our policy suggestions above are not yet conclusive due to a lack of policy implementation simulation. Additional research is needed on aspects of social, economic and long term effects of the proposed policy directions. Nevertheless, application of the policy suggestions of this research would increase the efficacy of Korean policy regarding the survey and remediation of the potentially contaminated sites.

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Legal Direction of Defect Warranty Liability in the Korean Construction Industry

  • Cho, Young-Jun
    • Journal of the Korea Institute of Building Construction
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    • v.18 no.2
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    • pp.195-202
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    • 2018
  • The defects that are bound to arise in most construction projects cause disputes among the contracting parties regarding the defect warranty liability (DWL)guaranteed by the retention of the contractor's performance security at the end of the performance period of the contract. Most current projects involve a multiple-tier contractual relationship, causing the liability for some defects to overlap. In addition, many construction projects are made up of multiple detailed work types which an expert hired by the owner inspects the part completed by the contractor and pays an interim payment. However, after the completion of work, the contractor will still hold the defect warranty liability. In a scenario in which the work is delayed due to reasons for which the owner is responsible, the defect warranty liability period is also increased, imposing an additional burden on the contractor. In this study, basic research was carried out with the goal of reducing problems related to defect warranty liability Problems related to defect warranty liability cases and the nature of the defect warranty liability period were investigated. Possible solutions to the problems caused by the DWL that were suggested include the separation of the negligence liability period and the strict liability period, as well as the introduction of a retention money system.

The Product Liability Laws and Regulations of China and Case Study on Product Liability (중국의 제조물책임 관련법규와 사례연구)

  • Huh, Jae-Chang;Han, Nak-Hyun
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.25
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    • pp.243-266
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    • 2005
  • Product liability is becoming a real issue to exporters, manufacturers world wide. The purpose of this study is to examine the product liability of Korean exporters, manufacturers, etc. under Product Liability Laws and Regulations of China. For this purpose, firstly we deal with the Product Liability Laws and Regulations of China. Secondly we analyze the case study concerning the Product Liability in China. From the analysis of case study, Korean exporters, manufacturers, etc. are required to pay close attention to the following : the correspondence of English with Chinese in the warning phrases, the possibility of application of strict global standard in case of existence of product liability, the proper treatment of evidence in the process of litigation, the application of strict liability and the shift of responsibility for evidence on to a defendant, the observance of procedures prescribed by the country in design and manufacture of the product, the manufacture of product to come up to country standard in quality, the consideration of diverse expression in the preparation of warning sign, the importance of quality control and inspection system in case of local procurement of parts and raw materials, Finally, this paper contributes to help the Korean Exporters, Manufacturers, etc. to build up the proper countermeasures regarding product liability under the product liability regulations of China.

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A Study on the Risk Allocation between Parties under the Carriage of Dangerous Goods by Sea (해상운송에서 위험물에 대한 운송 당사자간 위험분담에 관한 연구)

  • Yang, Jung-Ho
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.43
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    • pp.297-336
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    • 2009
  • In modern industrial society carriage of dangerous goods by sea becomes more increasing than ever before. Dangerous goods are required for special care and handling in that shipment of dangerous goods could affect safety of the vessel and other cargoes. It is also true that dangerous goods could be used as a means of terrorism. his article investigates allocation of risk and liabilities between parties involved in the carriage of dangerous goods by sea. More specifically, this study examines principles of strict liability of the shipper in shipment of dangerous goods with some limitations based upon recent cases. Furthermore this article investigates the issues on identity of shipper who bears strict liability to the carrier where there exist actual or documentary shipper other than the contractual shipper. Lastly, whether it is reasonable that the transfer of strict liability to the transferee, who does not have opportunity to verify dangerous nature of the goods before shipment, by endorsing bills of lading will be discussed critically.

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A Study on Product Liability of Aircraft Manufacturer (항공기제조업자(航空機製造業者)의 책임(責任)에 관한 연구)

  • Song, S.H.
    • Journal of the Korean Society for Aviation and Aeronautics
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    • v.12 no.3
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    • pp.41-63
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    • 2004
  • The area covered by product liability in broadest sense is so vast that an attempt to analyse all its impact on the aviation world risk. Every effort has been made to confine our review of subject a closely as possible to its influence on aircraft manufacturers, airlines and passengers, in spite of strong connections with other spheres of commercial. Product Liability in aviation is the liability of aircraft's manufacturer, processor or non-manufacturing seller for injury to the person or property of a buyer or third party caused by a product which has been sold. Here-in a product is aircraft, third party is passengers who suffered damage by defective design, defective construction, inadequate instructions for handling in aircraft. Whenever a product turns out to be defective after it has been sold, there are under Anglo-American law three remedies available against the aircraft's manufacturer (1) liability for negligence (2) breach of warranty (3) strict liability in tort. There are Under continental law Three remedies available against the aircraft's manufacturer (1) liability for defective warranty (2) liability for non-fulfillment of obligation (3) liability in tort. It is worth pointing out here an action for breach of warranty or for defective warranty, for non-fulfillment of obligation is available only to direct purchaser on the basis of his contract with the aircraft's manufacturer, which of course weakness its range and effectiveness. An action for tort offers the advantage of being available also to third parties who have acquired the defective product at a later stage. In tort, obligations are constituted not only by contract, but also by stature and common law. In conclusion, There in no difference in principle of law. In conclusion I would like to make few suggestions regarding the product liability for aircraft's manufacturer. Firstly, current general product liability code does not specify whether government offices(e.g. FAA) inspector conducted the inspection and auditory certificate can qualify as conclusive legal evidence. These need to be clarified. Secondly, because Korea is gaining potential of becoming aircraft's manufacturer through co-manufacturing and subcontracting-manufacturing with the US and independent production, there needs legislation that can harmonize the protection of both aircraft's manufacturers and their injured parties. Since Korea is in primary stage of aviation industry, considerate policy cannot be overlooked for its protection and promotion. Thirdly, because aircraft manufacturers are risking restitution like air-carriers whose scope of restitution have widened to strict and unlimited liability, there needs importation of mandatory liability insurance and national warranty into the product liability for aircraft's manufacturers. Fourthly, there needs domestic legislation of air transportation law that clearly regulates overall legal relationship in air transportation such as carrier & aircraft manufacturer's liability, and aviation insurance.

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A Study on the Revised Draft of Rome Convention on Compensation for Damage Caused by Aircraft to Third Parties - With Respect to the Draft Unlawful Interference Compensation Convention and the Draft General Risks Convention - (항공기에 의하여 발생된 제3자 손해배상에 관한 로마협약 개정안에 대한 고찰 - 불법방해배상협약안과 일반위험협약안을 중심으로 -)

  • Lee, Kang-Bin
    • The Korean Journal of Air & Space Law and Policy
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    • v.22 no.2
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    • pp.27-51
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    • 2007
  • The cumulative result of the work by the ICAO Secretariat, the Secretariat Study Group and the Council Special Group on the Modernization of the Rome Convention of 1952 are two draft Conventions, namely: "Draft Convention on Compensation for Damage Caused by Aircraft to Third Parties, in case of Unlawful Interference", and "Draft Convention on Compensation for Damage Caused by Aircraft to Third Parties" The core provisions of the former draft Convention are as follows: The liability of the operator is strict, that is, without the necessity of proof of fault. It would be liable for damage sustained by third parties on condition only that the damage was caused by an aircraft in flight(Article 3). However, such liability is caped based on the weight of the aircraft(Article 4). It is envisaged to create an independent organization called the Supplementary Compensation Mechanism, with the principle purpose to pay compensation to persons suffering damage in the territory of a State Party, and to provide financial support(Article 8). Compensation shall be paid by the SCM to the extent that the total amount of damages exceeds the Article 4 limits(Article 19). The main issues on the farmer draft Convention are relating to breaking away from Montreal Convention 1999, no limits on individual claims but a global limitation on air carrier liability, insurance coverage, cap of operators' strict liability, and Supplementary Compensation Mechanism. The core provisions of the latter draft Convention are as follows: the liability of the operator is strict, up to a certain threshold tentatively set at 250,000 to 500,000 SDRs. Beyond that, the operator is liable for all damages unless it proves that such damage were not due to its negligence or that the damages were solely due to the negligence of another person(Article 3). The provisions relating to the SCM and compensation thereunder do not operate under this Convention, as the operator is potentially for the full amount of damages caused. The main issues on the latter draft Convention are relating to liability limit of operator, and definition of general risks. In conclusion, we urge ICAO to move forward expeditiously on the draft Convention to establish a third party liability and compensation system that can stand ready to protect both third party victims and the aviation industry before another 9/11-scale event occurs.

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Consumer Misperceptions, Product Liability Law and Product Safety

  • Lee Jong-In
    • International Journal of Human Ecology
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    • v.6 no.2
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    • pp.63-72
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    • 2005
  • This paper considered the impact of changing the product liability rule from consumer to producer liability on product safety under asymmetric information. In particular, it has been attempted to remove several constraints on antecedent studies. The main results of the study are as follows: under the misperception of the risk on a product, consumers may underestimate the probability of product failure. In this case, the accident rate can be lowered under the producer's liability rule. However, even under the asymmetric information, a consumer's estimation on the probability may be converged with the expected risk level, which could be called the 'rational expectation.' In this situation the probability of product failure can be lowered under the strict liability with contributory negligence. Additionally, it is possible to reduce the probability of product failure when a legal rule that imposes liability on cheapest cost avoider is admitted.

The Liability on the Damage of Soil Pollution (토양오염의 피해에 대한 책임)

  • Cho, Eun-Rae
    • Journal of Soil and Groundwater Environment
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    • v.10 no.6
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    • pp.1-9
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    • 2005
  • Soil is polluted by an agricultural chemicals, the effluence of a crystal and sewage sludge, illegal discharging of waste water or waste matter and so on. Soil pollution that accompanies a groundwater and the crops contamination has a large effect on people's living. By polluters pay principle, when a soil was polluted, polluters take the responsibility of clean-up and compensation for damages. The character of the responsibility is a strict liability. When joint polluters exist in a soil pollution, they bear collective responsibility. But they are exempted from obligation in case of a natural calamity and war. The polluters who are poor contribution of pollution take a partition responsibility but it is not easy to prove that. The concerned parties of purification liability in a soil pollution are polluter, an owner or occupant of a contaminated site, and a grantee. But when we do not appoint the polluter or he cannot do a cleanup, municipal must put in effect the purification. In such a case, another parties who are related to the contamination should take upon themselves a liability. The province of responsible parties, therefore, is required to extend to an owner or operator of a facility, a carrier and lender.

The Liability of Air Carrier in Relation to the International Carriage of Cargo by Air under New Warsaw System (신와르소체제하의 국제항공화물운송인의 손해배상책임)

  • Lee, Kang-Bin
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.20
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    • pp.213-239
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    • 2003
  • This paper intends to describe the liability regime of the air carrier under the Montreal Convention of 1999 for the international cargo, comparing to those of the existing Warsaw Convention system. Also this paper deals with main issues of the Montreal Convention which are relevant for the carrier's liability in the carriage by air of cargo. The Warsaw Convention was adopted in 1929 and modified successively in 1955, 1961, 1971, 1975, and 1999. The Montreal Convention of 1999 modernized and consolidated the Warsaw Convention and related instruments. International air carrier is liable by application of principle of strict liability as stated in the Montreal Convention : The carrier is liable for the destruction or loss of, or damage to cargo and delay during the carriage by air, and the carrier's liability is limited to a sum of 17 Special Drawing Rights per kilogramme. However, the Montreal Convention has main outstanding issues with respect to the liability of the air carrier : potential conflicts between the Montreal Convention and the Warsaw Convention, the amounts of limits of the carrier's liability, the duration of the carrier's liability, the exessive litigation, and the aviation insurance. Therefore, the conditions and limits of the carrier's liability under the Montreal Convention should be readjusted and regulated in detail.

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