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The expropriation is the most critical issue in development of oil and gas to International Oil Companies. Huge amount of money and high techs are required for oil and gas exploration and exploitation. With expropriation, investors will lose assets invested in oil development and the chance to get oil or gas being produced from the project, resulting to be the serious threat to any International Oil Company. There were so many examples of outright expropriation in Iran, Libya, and Mexico in former century. But, the method of expropriation has been different due to the political and economic circumstances. Historically, it is the trend that expropriation follows the favorable policy of host government to International Oil Company to lure them for the country’s economical purpose. The basic rationales of expropriation have been self defense, independence, sovereignty, and the principle of equity. Resource nationalism became an international custom since 1952, UN resolution 626 and 1962 UN resolution 1803. The expropriation without compensation is deemed to be an illegal one. However, if expropriation has public interest and is indiscriminative with fair and just compensation in accordance with due process of law, the expropriation is legal under the public international law. In this article, the cause and background of expropriation are dealt with, then the difference between outright and creeping, direct and indirect expropriation became expropriation are ‘expropriation’ is the critical issue because of the face that expropriation will be given any compensation, while there will be compensation for any action by the host government which is not expropriation. The final issue in this research is how to decide the amount of compensation. This issue has practical meaning. Theoretically, whether restitution is possible for illegal expropriation and how to account the amount as the compensation in legal expropriation are hot problems. Although there are judicial and theoretical solutions for compensation, in practice whether the judicial decision might be enforced should be considered. As a company which wants to develop oil and gas in overseas, it has to anticipate the most serious political issue, expropriation, and to prepare for any solution before. Prudent consideration and to make the agreement with practical manner with keeping the understanding on the actual result of expropriation in mind are necessarily required.

최근 일본 도요타 자동차 리콜사태와 관련하여, 가속페달을 조정하는 소프트웨어의 결함으로 사고가 발생하여, 도요타를 상대로 미국에서 제조물책임소송이 제기되고 있습니다. 이 논문은 이러한 도요타 사건에 착안하여, 만약 소프트웨어를 거래한 국제물품매매계약이 체결되었으나, 이로 인해 제조물책임 소송이 제기된 사례가 발생했다고 가정할 경우, ‘제조물 책임과 소프트웨어 거래에 대해, 유엔국제물품매매협약('협약’)을 적용할 수 있는가’를 알아보기 위하여, 관련 논의사항을 소개하는 글입니다. 동 협약은 1988년 발효된 이후 각 나라 간에 통일된 법해석을 통해, 국제물품매매 당사자 간에 공평하게 적용될 수 있는 국제물품거래에서의 최선의 ‘준거법’으로 서 위치를 확고히 해 나갈 수 있는 기반이 다져지고 있다고 볼 수 있습니다. 그러나, 동 협약의 적용범위에 대해서는 각 나라의 법원마다 상이한 경우가 있어, 협약적용의 통일화를 완전히 이루지는 못하고 있습니다. 협약 제1편 제1장에 그 적용범위를 규정하고는 있으나, 협약에서는 물품에 대한 정의를 내리지 않았기 때문에, 어떤 물품에 협약이 적용되는지가 명확치 않고, 소프트웨어 거래에도 협약이 적용되는 지에 대해 판결국 또는 법원에 따라 판결이 다른 경우가 있습니다. 또한, 제조물책임의 경우, 협약 제5조는 “물품으로 인하여 발생한 사람의 사망 또는 상해에 대한 매도인의 책임에는 적용되지 아니한다”라고 규정하고 있음에도, 우리나라에서는 협약이 제조물책임을 완전히 배제하는 것으로 이해되는 경우도 있습니다. 따라서, 이 논문에서는 소프트웨어 거래와 제조물책임의 경우, 협약의 적용 여부에 대한 주요 판결을 검토하고, 비교법적인 관점에서 매매계약 관련 미국 법률(통일상법, 통일컴퓨터정보거래법 등)에 의한 적용사례 등을 소개합니다.

Recently, the National Assembly had held on personnel hearing in order to examine the approval bill for appointments of candidate for the Prime Minister and candidates for a member of the State Council appointed by the President. Personnel Hearing is to be a system for holding in check on the Presidency by a verification procedure of National Assembly, before the President appoints the senior officials. Personnel Hearing is verifying the right competence and qualification for official position of a candidate for high official position appointed. However, the candidates have handicap of morality surrounding camouflaged move-in, real-estate speculation, and tax evasion, revealed by the recent personnel hearing. Recent personnel hearing on candidate for high official position appointed results in that the President appoints several candidate to a member of State Council, withdraws nomination of two candidate for a member of State Council and withdraws nomination of a candidate for the Prime Minister. In according to withdraws, the new personnel hearing shall be held on a candidate for the Prime Minister and two candidate for a member of State Council. Recent personnel hearing on a candidate for the Prime Minister, and candidate for a member of State Council, a candidate for the Commissioner of the National Tax Service and a candidate for the Commissioner General of the National Policy Agency had concentrated on finding faults and political attack for candidate, had overlooked the competence for high official position and morality of candidate. This point of time, we have to reexamine the system of the personnel hearing by the Nation Assembly. In this paper, I will examine on the meaning, the background, the function, the legal bases, and the scope of candidate on the personnel hearing. Also I will propose the reform measures of the personnel hearing after I will examine the issues on personnel hearing on candidates for high official position, without the constitutional bases.

A matrimonial breakdown is an inevitable phenomenon in human life. In the most countries, the divorce system which both spouse dissolve the marriage by their own will is granted, and the style of divorce is different depending on a time and country. Therefore the freedom of divorce as well as the freedom of marriage which belongs to human basic right is also guaranteed naturally. In the meantime, since the korean divorce law was established by the influence of western divorce law, the law of matrimonial breakdown has been improved from the Fault for Divorce which includes that the divorce is possible only in case of either responsibility or both‘s to the No-Fault for Divorce which includes that the divorce is permitted only with objective fact regardless the responsibility on the matrimonial breakdown. This tendency means that government intervention has been reduced about the divorce itself. This means that government changed the policy from which does not allow the dissolution of marriage easily because a marriage should be protected as a basic system of family-a standard unit of society, to which allows the dissolution of marriage reasonably because there is no meaning not allowing divorce when matrimonial relationship has no possibility of restoration. But a carrying-out the No-Fault for Divorce has a possibility causing a miserable result to the spouse who has no responsibility on the matrimonial breakdown. So there should be a full consideration for the spouse who is in a weak-side after divorce socially, economically, and also proper responsibility of a concerned person should be required. Government should intervene positively about the matters in relation with the result of divorce such as bringing-up children, support for the former spouse, parental rights, right of access, dividing the property to protect the socially weak person. In the meantime, a precedent excludes a divorce claim of a fault-spouse strictly, excluding some exceptions, to protect a marriage system and a supporting claim of socially weak spouse, so the reason of divorce in the present divorce law trial based on the Fault-for Divorce as a rule and also recognized the No-Fault for Divorce exceptionally. Under the assumption that the improvement of divorce law has reflected the change of social environment and consciousness, actual relationship between married couple is regarded more important than the law of marriage itself in the present society. And when considering the change and developing speed nowadays, a precedent about a divorce claim of a fault-spouse would be needed to correct someday. Though it is difficult to expect, when a fault-spouse claim divorce, the reason of divorce replaces the Fault for Divorce by the No-Fault for Divorce immediately considering the reality of our society and sense of law, the No-fault for Divorce will be increased definitely in the near future. After all, a matter concerning the divorce claim by guilty spouse and the principles of matrimonial breakdown should be understood in view of the world-wide, common, and general increase of human right awareness and existence of human right concept, should be discussed under the assumption that a value which is aimed and admitted generally in human society should be accepted and reflected to a certain extent.

The problem of the employ’s liability, which is emerging as the main subject of legal dispute in various social areas, is provided in the article 756 of Civil law. For the employ’s liability to be valid, ① 'the existence of the relationship of employment' ② the employee should give damage 'in the execution of task work'. ③ the employee should give damage to the 3rd party ④ the employ should not be able to prove that he is exempt from the content of the article 756 of Civil law, which above 4 conditions should be satisfied. Precedent cases regarding the requirement for the employ’s liability are as follows: First, judgment of the employ’s liability is held by whether actual relationship of supervision existed, but it is appropriate to judge considering to the view of fair division of damage among the employer, victim, and the employee. Second, in regards to execution of task work, the standard for judgment suggested by the judicial case is the ‘Appearance Theory’. However, regarding actual judgment, in case of illegal action occurred during trade, judgment is held according to the theory above, but in case of accidental occurrence of illegal action, the appearance theory is not applied because its presumption cannot be satisfied, and it seems that judgment is held in the view of fairness of who takes the burden for the damage of the victim. Third, regarding the employee’s injury towards the 3rd party, the necessity of employee’s intention or negligence would be appropriate.

Das Internet bietet nicht nur eine gute Fuktion sondern auch eine schlechte Funktion z.B. Personlichkeitsverletzungen oder die Verbreitung jugendgefahrdender Daten im Menschensleben gleichzeitig. Die Auswirkung des Internet ist zu groß, wenn die schlechte Funktion mit dem Charakter und Einflußkraft des Internet verbindet. Die schlechte Funktion des Internet steht im Zusammenhang mit dem Anonymitatscharakter des Internet. Deshalb ist das die Betreffende identifizierenden System im Internet als Gegenmaßregeln dagegen gesetzlich eingefuhrt. Hier handelt es sich daum, ob das die Betreffende identifizierenden System im Internet wegen der Verletzung der Meinungsfreiheit verfassungswidrig ist. Zum Schluß verletzt das die Betreffende identifizierenden System im Internet nicht verfassungswidrig, weil es keinen Wesensgelt und Ubermaßverbot der Meinungsfreheit verletzt.

In this paper, a review is made of examples and legal issues related to the amount of retirement allowance paid with monthly salaries. Since 2000, there have been the cases in which labor contracts are entered into specifying that retirement allowances be paid each month or each year together with salaries in a modified form of interim account settlement. Such practices have since caused much controversies over the legal nature of the amounts paid with salaries in the name of retirement allowance. Concerning those practices, the Supreme Court of Korea has ruled as follows: first, the payment under the title of retirement allowance shall not be regarded as wage that is paid in compensation for labor, so the employee shall return what is received under such name to his or her employer as it is an excessive profits; and second, offset of claims for retirement allowance by claims for return of excessive profits is possible, but offset only within the scope of amounts that exceed more than half of the claims for retirement allowance. The viewpoint of the Supreme Court in this case seems, however, not to have fully reflected the original intent of the system of excessive profits and legal nature of retirement allowance. First, the amount paid in addition to or in partition of the monthly salary should be looked upon as ordinary wage because it is provided periodically and indiscriminately. If a contract is settled to include retirement allowance in the annual salary with a view to avoid payment of retirement allowance by dividing ordinary wage and retirement allowance, the amount paid under the pretext of retirement allowance shall be interpreted to belong to ordinary wage. Even if the intent to avoid payment of retirement allowance appears unclear, it must be clarified whether the payment is made in compensation for labor or regularly or indiscriminately. Besides, even when it is not the case of ordinary wage, it must also be made clear if it is the wage that an employer is forced to pay in return for labor or whether it is kind of amount, if not wage, that is paid by employer to employee in the form of expenses for congratulations and condolences. Second, a contract for interim account settlement between the plaintiffs pleading for judicial decision of excessive profits and the defending companies is an offense against the enforcing regulations of the old Labor Standards Act and is, thus, void in the absolute and objective sense. Moreover, such contract is settled in line with change in the management policy of the defending companies and revision of the employment regulations. Though the plaintiffs look like having freedom formally in their position to enter into contract with the employer, they are under no circumstances in the fair relationship with their employer but they, as an individual, are on a discriminatory position as an employee who is actually within an organization of the company. It is difficult to say that, under such relationship, plaintiff's claim for payment of retirement allowance is a breach of estoppel, insisting upon nullifying of interim account settlement of retirement allowance. The claim of the plaintiffs for retirement allowance is nothing but an exercise of their legitimate rights but is anything but an overuse of their rights. It is rather intolerable for the defending company to try to legitimate itself after it commits legal provisions itself. The claimed retirement allowance is not thought to be excessive profits in this context. Third, it is hard to accept the defending company's claim for excessive profits and, even when it is accepted, the claim for return of excessive profits shall be rejected as it is ill-intentioned paiement de l'indu. The contract for interim account settlement concluded in violation of the Labor Standards Act is presumed to have an intent to avoid the obligation to pay retirement allowance. And in the case such intent can't be clearly traced up, the assertion that they have not known or have misunderstood the provisions of the Labor Standards Act can't be accepted because it is purely a mistaken motive. As far as the amount paid in the name of retirement allowance is found to be an excessive profits, it must be examined whether there is any ill intention on the part of the defending company to judge if the claim for return of the amount can be recognized. Lastly, in the case concerning the offset of claims for retirement allowance, it was ruled out that it is legitimate to claim for return of excessive profits and it is possible to offset it by plaintiffs' claim for retirement allowance, which is an express neglect of the provisions explicitly specified in the Labor Standards Act as well as in civil enforcement laws. In principle, wage shall be paid in whole to the employee. Whereas, however, there is an exception in which certain amount may be exempted from the wage if legal provisions or collective agreements stipulate so. Employer can nowhere try to offset its claim for compensation of damages against laborers by the employee's claim for wage, even when there is any agreement on it between employers and employees. Since employee's retirement allowance falls within the claim for wage in nature, it is prohibited to offset employer's claim by employee's claim for retirement allowance. It is therefore found contradictory to the legal principles that preliminary plea is accepted toward the offset of the defending company's claim for return of excessive profits without taking into account the principles banning offset of the claim for wage.

Biomedical research is opening new frontiers in treatment of disease, understanding physiological processes, and increasing knowledge. On the other hands, the advance in this field come with a host of ethical quandaries. Yet, this research presents us, as humans, with incredible opportunities to better the lives of almost everyone. Thus, to extent that such research is to be permitted, it should be done under stringent ethical guidelines. Bans or other limitations on embryonic stem cell research do not accomplish their purported goal of saving embryos from destruction. Every year, Thousands of embryos are created through the IVF protocols as part of infertility treatments. Many of these embryos end being destroyed for a variety of reasons. The creation and destruction of these embryos can be ethical, provided that the guiding principle through the entire process remains the best interest of the embryo, thus recognizing the embryo’s humanity. The approach outlined by the present Article allows for a principled support of embryonic stem cell research while acknowledging the humanity of the embryo.

As a forerunner of American legal realism, Oliver wendell holmes criticized both of traditional natural law theory and Langdellian legal formalism. In "The Path of Law", his last efforts at establishing a systemic legal theory, Holmes placed the law-morals issue at center stage. His notorious "bad man" was a tool-concept to explain differences between law and morality. On the one hand, Holmes recommended the conceptual distinction between law and morality. On the other hand, he admitted the judicial decision making completely free of the evaluation of political morality and policy might be impossible. More importantly, the fictional character represented Holmes' comprehensive legal skepticism. Distrust on morals as well as on legal principles skepticism supported his belief that there was no basis in reason to explicate legal judgement. He offered as an alternative perspective the prediction theory of law. Yet his suggestion has not been fully successful, but can be a good model for redirecting the purpose of legal science and the theory of adjudication.

This research paper examines the en banc decision of the Supreme Court, 2003Da45267, decided on May 25, 2006, with a critical view. At first, the Court approved that if the original seller in the sales contracts for each unit of an apartment building with individual buyers becomes financially insolvent, and assigns its rights on the contracts as well as building construction to the guarantee including a housing cooperative, and the guarantee resumes building construction through the succession procedure of the construction, the sales contracts between the original parties, the seller and the potential buyers through their purchase guarantee agreements, would be implicitly avoided because these parties have mutually agreed on avoidance of the contracts. I disagree on the Court's reasoning which regards such "implicit intent" of the parties to avoid the sales contracts as "mutual consents" between them to terminate the contracts under the above-mentioned circumstances. Such an interpretation of the parties' intent is beyond the statutory meaning of intent. Second, the Court also held that when the sales contracts had been terminated, avoidance of the contracts would be affected only in the future, not retrospectively in the past, since tearing down the buildings, which have been constructed as the performance of the contracts, would be socially and economically detrimental to our communities. However, such grounds of this holding is not persuasive. Unlike this reasoning, I would rather argue that legal obligations between the original contracting parties will be retrospectively terminated in case of avoidance of the contracts. Since the land, on which the building is built, is still owned by the original seller, even though avoidance of the sales contracts in units affects the validity of the contracts retrospectively, the seller does not need to demolish its building, but rather looks for new purchasers for the building.

Alternative Dispute Resolution (ADR) refers to any means of settling disputes outside of the courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration(Arbitration and mediation are the two major forms of ADR). As burgeoning court queues, rising costs of litigation, and time delays continue to plague litigants, more states have begun experimenting with ADR programs. Some of these programs are voluntary; others are mandatory. Japanese law has long provided for kinds of conciliation or settlement. However, when reintroduced under a new name, “alternative dispute resolution,” this tradition is now seen as an innovation based on foreign models. The diffusion of ADR is one of the central issues for Japan’s judicial reform since the late 1990s, and new ADR law was enacted in 2007. Despite its concept of “alternative justice,” ADR has been controlled by the legal establishment, the Ministry of Justice and the Japan Federation of Bar Associations, in particular. The legal establishment has successfully established and maintained jurisdictional barriers at the legal filed in Japan. Similarly, the legal establishment is getting to dominate the new ADR field as well. The regulations introduced by the legal establishment have become obstacles hindering non-lawyers’ entry to the ADR market. Consequently, most of certified ADR providers are operated by local bar associations. Unlike the United States, non-lawyers in Japan are not successful in professionalizing themselves as ADR experts.

1. Gelingt es im reschtsstreit nicht, den zugrundeliegenden Sachverhalt zur Uberzeugung des Gerichts aufzuklaren, so darf der Richter trontzdem eine Sachentscheidung nicht ablehnen. Als Folge des Justizgewahrungsanspruchs hat der Richter Vielmehr stets eine Sachentscheidung zu fallen. In diesem Fall beruht die Entscheidung des Gerichts auf den Regeln der objektiven Beweislast. Diese bestimmen also uber die objektiven Folgen der Beweislosigkeit. Die Beweislastregeln finden dagegen keine Anwendung, wenn der Sachverhalt zur Uberzeugung des aufgeklart. Ein non liquet in der Beweiswurdigung kann in jedem Verfahren auftreten, in dem tatsachliche Umstande vom Gericht festzustellen sind. Die objektive Beweislast ist deshalb unabhangig von der Art der sachverhaltsermittlung; sie ist auch in Verfahren mit Untersuchungsmaxime relevant. 2. Die Beweisfuhrungslast(subjektive Beweislast) gibt an, welche Partei Beweisantrage stellen darf und muß, wenn sie nicht beweisfallig werden und deshalb den Prozeß verlieren will. Diese Last gibt es nur in Verfahren mit Verhandlungsmaxime. Wer hier die objektive Beweislast tragt, hat grundsatzlich auch die Beweisfuhrungslast. 3. Von der normativ generell festgelegten(objektiven und subjektiven) Beweistlast ist die konkrete Beweisfuhrungslast im Prozeßverlauf zu unterscheiden: Je nach dem bereits gefuhrten Beweis und der vorlaufigen Uberzeugung des Gerichts kann sie jede Partei abwechselnd treffen.

It is true that alternative dispute resolution system is the only substitute for court lawsuit cases, being the means of social order maintenance and conflict resolution. Within the system, the arbitration system is capable of operating other alternative dispute systems in an integrated way. To revitalize such arbitration system some tasks are to be suggested here after reviewing results from the experience of establishing and running the Korean Arbitration Board, the first in the country that focused on judicial disputes, from a clinical perspective. We cannot help but to admit that we are under developed when it comes to arbitration system. Even Japan, who were in a similar position as Korea, established the so called "ADR law" in 2004 and have surpassed our level by more than 5 years. Many countries from all over the world are already actively utilizing the arbitration system in a level that we cannot comprehend. It is only natural for these nations since they have the common trait of having tens and hundreds of arbitration institutes. On the other hand, there are around 5 arbitration institutes in Korea, including administrative ones. Revitalization of arbitration system in Korea seem like it has a long way to go. But since it is inappropriate to establish an arbitration system for profit or in a foundation form its establishment should be actively encouraged and supported through government funding or education and promotion in relation to educational and training centers. Korean arbitration law requires judgment of execution not only for international arbitration but also for domestic ones, resulting in economic pressure for each case. This leads to financial burden on the parties of interest, leading to avoidance of arbitration. Therefore, apart from arbitration judgments that are international, domestic arbitration judgments should be able to attain word of administration immediately. Also, application of arbitration should be recognized of its effect of extinctive prescription suspension. The court must recognize that alternative dispute resolution system does not exploit court authorities but is a necessity that will reduce prosecution's task and pressure. Support and cooperation from the court, government and lawyers will greatly contribute to the revitalization of the arbitration system and a better, more appropriate arbitration judgments can be expected through the acquiring of better arbitrators that we will be able to recruit with the financial support. Thus the awareness of court cases and arbitration judgments being not too far from each other will lead to utilization of arbitration system. Considering the characteristics of arbitration it requires more autonomy and flexibility than lawsuits, making it necessary not to have any hinderance during in which parties decide the arbitration process, select the arbitrator and fact finding method, allocate cost , and decide the arbitration location and governing law. This will result in a cheaper, quicker, more secretive resolution of dispute than the court lawsuit as well as giving the effect of being more descriptive of one's problems with a less authoritative, trustworthy arbitrator. The feeling of attaining judgment that is not too different from that of the court will reduce social conflict and the arbitration system will be revitalized.

This article, an abridged Korean translation of “Understanding Legal Pluralism: Past to Present, Local to Global” by Brian Z. Tamanaha, explains about the conceptual problem plaguing legal pluralism and introduces a probable solution. Based on this conclusion, it devises a framework which categorizes the legal pluralism phenomena and further explores how these categories clash to what results. Legal pluralism has been heralded by scholars of legal anthropology, legal sociology, comparative law and international law as the theory elucidating the daunting multiplicity of legal orders. But despite all this attention, legal pluralism was marked by conceptual confusion from the very beginning. Participants of legal pluralism come from different disciplines, bringing different concepts and orientations to the subject. Also theorists were not able to agree on a single definition of law for social scientific purposes. If law is defined too broadly, it becomes impossible to discern from other social relationships. This article suggests a solution by regarding law as a “folk concept”; in other words law is what people think of as law. This simple approach can be expanded into a framework that divides the phenomena of legal pluralism into the following six categories: Official legal systems; Customary/Cultural normative systems; Religious/Cultural normative systems; Economic/Capitalist normative systems; Functional normative systems; Community/Cultural normative systems. A single social arena can have one or more of these legal orders; co-existing legal orders tend to clash with each other for supremacy in redundant areas. Most often official legal systems tend to clash with the other five normative systems mentioned above. In such situations, the official legal system copes with the conflict in either of three ways. First, the official legal system might disallow the competing system but take no action to repress it. Second, the official legal system might absorb the competing system. Third, the official legal system might denounce the competing system, and then actively execute that claim. But if the competing system is more prominent in the social arena than the official legal system, the above methods might not operate as expected. Other from the prior systematic approach, the conflict between normative systems can be viewed from the perspective of individuals and groups. Strategic actors resort to the legal system that aligns with their cause and in making this decision they consider the barriers that exist in connection with each system. The forgoing framework brings on the same plane much of what is discussed by scholars interested in legal pluralism. Now with the conceptual problem of legal pluralism resolved, this framework will work as a practical tool in handling the plurality of law in all societies.