Earticle

The UNCITRAL Model Law on International Commercial Arbitration is called the standard law at england, america and continental area, because it considers the national economic system and economic development limits. Nowadays, the UNCITRAL model law is recognized international standarization law. Furthermore it effects the revision of the other contury which didn't concept the uncitral model law. In this context, i'll study on the contents of the uncitral model law and look into the current condition of affairs of canada and germany as foreign legislations. Finally, i'll study on the utilization and trends of the korea.

In the Contract Law of P. R. China Article 73 describes that if the obligor is indolent in exercising its due creditor's right, thus damaging the interests of the obligee, the obligee may request the people's court for subrogation in its own name, except that the creditor's right exclusively belongs to the obligor. The subrogation shall be exercised within the scope of the creditor's right of the obligee. The necessary expenses caused to the obligee by exercising subrogation shall be borne by the obligor, which means china also regulates the rule of creditor's subrogation in different ways. In chinese supreme court case, they promulgate the Supreme People's Court's Interpretations of Certain Issues Concerning the Application of the Contract Law of the People's Republic of China (part One). This complements the system of creditor's subrogation and the obligatory right according to article 11 to article 22. First of all, there are several obligatory rights in one such legal act, One such obligatory right has numerous legal interpretation, but, for chinese case, the pupose of obligatory right would be the purpose of payments. Secondly, due to Contract Law of P. R. China article 73-1. it regulates the how to act the creditor's subrogation. Last of all. refer to the affection of obligee's subrogation, even though china doesn't possess regulation on the creditor's subrogation; however, according to article 20, the creditor's subrogation can be approved at second hand. There are several differences between another countries' creditor's subrogation system and chinese creditor's subrogation system. Due to the fact that china now have good trade relationship between Korea. It is important to look for actual significance of security transactions with clean credits.

Today, the activities of enterprises and individuals cross borders, and furthermore, the markets of goods and capital are limitless without borders and the resources, such as technology and labor force, have become circulating internationally. In this era, it’s natural that the economic destruction of a debtor takes the form of internationality. The existing Korean laws related to bankruptcy were based on the idea to complete the bankruptcy process only in Korea within the reach of the jurisdiction of Korea. The territorial principle of Article 3 of the previous law of insolvency and Article 11 of the existing Composition Law is contrasted with universalism (or dissemination). Universalism is the position to affirm the international effect of bankruptcy overseas not just nation which starts the procedure for insolvency. At this time when international bankruptcy has been increasing, the existing strict territorial principle cannot have its legitimacy any more and goes against the global trend, so a new law “Debtor Rehabilitation and Bankruptcy Act” has been legislated. EU regulations clearly separate main procedures and subordinate ones and clarify the effect of each procedure, and we can see that England has commenced the main procedure in London where there are no property of debtors and no creditors by using the weak point of the combination of the concepts of COMI (center of main interest) and headquarter function, makes a progress with the procedures for insolvency according to its national law, and makes use of the courts of other member nations in order to realize its profit. When it’s observed that ethnocentrism through hunting in the jurisdiction is strong within EU nations which the principles of automatic approval and the principle of priority, based on mutual trust, are supposed to be applied to, it raises doubts of the impossibility of the ideal of pure universalism. Rather than pursuing just the improvement of the procedures of approval ․ execution (for example, simplification of execution, such as automatic approval system), the elasticity of making integrated use of different methods verified so far should be maintained. Securing the integrity between the procedural law of insolvency and the substantial law of insolvency or the close interrelatedness with the nation which starts the procedure for insolvency are being indicated, but in reality, it’s almost impossible to separate the effects of the adjective law of the insolvency procedure from the those of the substantial law, so it’s thought to result from the realistic need to avoid it. Because of the characteristics of the procedure of insolvency, it’s practically difficult to make a sharp distinction between procedural ones and substantial ones and to regulate according to each principle of law. Therefore, it’s basically desirable to follow the law of the nation which has started the procedures when it comes to the procedure of overseas insolvency and its effects. Debtor Rehabilitation and Bankruptcy Act, which is in force in Korea since April 1st, 2006, regulates 15 provisions on international insolvency, but has no direct regulations on the jurisdiction of international insolvency, so it needs to be solved with Article 3 of the general provisions of the same law and with the regulations on the general jurisdiction of international civil suit under Article 2 of private international law.

In the Chinese legal system, land is in possession of the state and the group, and cannot be owned by the private person. In order to emphasize the nation’s ideology of socialism, the state-owned land had been used, in principle, free of charge for a long time. The land use system like this caused irrationality and low efficiency of the use of land, resulting in serious waste of land resources. Also, since the state allowed people to use land free of charge, earnings could not be obtained by utilizing land. This led to financial deficit and the state could not secure necessary fund. Facing such circumstances, the Chinese government reformed the land use system from the 1980s and abolished the land use free of charge system and adopted the land use for compensation system. And the related legal system was reformed so that the land use rights can be transacted. The core of this change is the land use right system. As the law of jus in rem became effective in 2007, the land use right system brought about new changes. When China enact chinese law of jus in rem, it is considered to use two tracks system which separated city and farming area. so this paper also studied on land use right in city and rural area respectively. Especially, it focused on a expiration problem of building site use right in city and a inheritance problem of residential site use right in farming area. It is a character of the chinese law of jus in rem to regulate by classifying the types of land into the rural land and the urban land. And it agrees with the land nationalization system. This legal system of land use right is one considering the basic policy of China and traditional systems. It is evaluated as a legislation considering China’s unique land ownership relations rather than adopting the concept of superficies in jus in rem. It was a good idea to regulate by classifying the types of land into the rural land and the urban land in the course of legislation ofthe land use rights. But not being able to define the form of usufructuary right more concretely is pointed out as a problem. Besides, there are diverse problems such as confusion with the function of registration, resulting from the fact that the law of jus in rem was enacted quite recently. In order to solve these problems, this research suggested that the detailed rules related to the enforcement of the law of jus in rem should be promptly enacted.

귀책원칙의 전제는 우선 손해배상의 원인을 찾아내야 한다. 과실책임원책이란 손해가 발생하였을 때 반드시 배상책임을 지는 것이 아니고 행위자의 과실 여부를 살펴봐야 한다. 만약 행위자가 과실이 있으면 책임이 지고 과실이 없으면 책임이 지지 않다. 무과실책임원칙이란 행위자의 과실 여부를 불문하고 행위자의 행동이 다른 사람에게 손해를 입힌 경우 법적 사유를 제외 한 반드시 책임을 지는 것을 의미한다. 무과실책임원칙의 의의는 행위자의 책임을 강화가고 피해자의 청구권을 쉬게 달성하도록 하는 것이다. 불법행위책임제도는 바로 이러한 “이원제”(二元制)체제하에 구축되었다. 과실책임원칙은 불법행위책임제도의 일반 원칙이고 무과실책임원칙은 불법행위책임제도의 법적 예외이다. 이러한 예외 규정이 있기 때문에 법규범의 부족이 보완되었고 피해자의 권익도 더욱 보호되었다. 불법행위책임법은 총 12장 92조로 구성되었고 여러 측면으로 국민의 민사권익을 보호하고 있다. 이 법을 국민의 인신(人身) 및 재산을 보호하는 집대성자로 볼 수도 있다. 제품하자, 고통사고, 의료사고, 환경오염, 인터넷에 관한 불법행위, 동물로 인한 인적 손해 등 모든 내용이 불법행위책임법에 포함되어 있다. 이 법은 국민의 생활과 밀접 관련한다.

The principle of liability fixation is to find out the reasons of damage or loss first. The premise of liability for fault is the existence of fault and the premise of no-fault liability is the existence of risk. Therefore, the provisions in respect of tort are built on this “binary” system of tort liability. Fault liability is the basis of general liability and no-faulty liability is the exception of the provisions. This kind of exception improves and perfects the deficiency of the provisions and profits of the victims are further protected.