Institute of Legal Myongji University最新文献

{"title":"The Fair and Equitable Treatment in International Investment Agreement:Lessons Learned from the Lone Star Case","authors":"Hanbit Min","doi":"10.53066/mlr.2023.21.2.133","DOIUrl":"https://doi.org/10.53066/mlr.2023.21.2.133","url":null,"abstract":"The award of the Lone Star case was, at last, dispatched to the Parties on August 31, 2022. As the Tribunal determined that the Tribunal had jurisdiction over claims allegedly occurred after the 2011 Korea-Belgium𐄁Luxembourg BIT became effective on March 27, 2011, the key issue was allegations of misconduct by the Financial Services Commission in the sale of the Korean Exchange Bank shares to the Hana financial group. The Tribunal concluded that the Financial Services Commission acted arbitrarily as it was motivated by political reasons and, therefore, had failed to provide Fair and Equitable Treatment under the 2011 Korea-Belgium𐄁Luxembourg BIT. In order to review the Lone Star case critically, this paper firstly analyzes international arbitration cases relating to Fair and Equitable Treatment, and then examines legal implications of the Lone Star case. On top of that, this paper reviews the ways to stipulate Fair and Equitable Treatment under International Investment Agreements based on legal implications derived from the Lone Star case.","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128211925","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Problems and improvement of the fund management structure in the private equity fund crisis","authors":"Min-eui Jeong","doi":"10.53066/mlr.2023.21.2.35","DOIUrl":"https://doi.org/10.53066/mlr.2023.21.2.35","url":null,"abstract":"Lime Asset Management Co. Ltd., Optimus Asset Management Co. Ltd., and Discovery Asset Management Co., Ltd. are the main asset managers in the so-called private fund crisis. In this article, we look at common illegal acts in the fund management structure, and analyze the relationship between the structure and the illegal acts. The three asset management companies all had one thing in common: investment money reached the final investment target assets via a conduit functioning as a reservoir. Plus, all three asset management companies have either finalized sentence or are in the criminal process on fraud due to Ponzi-Scheme, and have received administrative sanctions or are suspected of violating the Public offering regulations. It is analyzed that the reason for such a common phenomenon is that the conduit functioning as a reservoir can play a key role in helping fraud and violation of the public offering regulation. \u0000In addition, in the Optimus case, a criminal trial is underway as it is suspected that the Ponzi scheme was caused by the integrated management of trustee accounts, and Discovery is suspected of reducing investors' access to information by using an additional conduit. \u0000In this article, I would like to suggest three specific ways to improve these problems. The first is to establish a new regulation that shall be deemed to a public offering when debt securities issued by the same issuer are invested in two or more funds and to amend the regulations to include detailed information on conduit in the registration statement. The second is to put a provision to clarify the meaning of separate management obligations in the key specifications. Thirdly, if the fund uses a conduit, it is to limit the establishment of the fund through a self-regulatory organization, and if a fund is established, strengthen the description of the conduit.","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116641141","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Appraisal right of dissenting shareholders: Analysis of the Supreme Court Decision 2016Ma5394, 5395(byeonghap), 5396(byeonghap) delivered on April 14, 2022","authors":"Eunkyoung Yun","doi":"10.53066/mlr.2023.21.2.89","DOIUrl":"https://doi.org/10.53066/mlr.2023.21.2.89","url":null,"abstract":"Under the Korean Commercial Code(the “KCC”), the Financial Investment Services and Capital Market(the “FSC”) and the Enforcement decree of the FSC(the “ED”) provides that (i) where a shareholder, dissenting from a resolution regarding corporate reorganizations such as mergers and acquisitions under the KCC, has notified the company of his/her dissent to such resolution in writing before a shareholders meeting, he/she may request the company to purchase his/her shares in writing, specifying the classes and number of such shares, within 20 days from the date of the resolution at such shareholders meeting, (ii) where the company receives a request, the relevant company shall purchase the shares in the period during which a request for purchase can be made under the KCC, FSC and the ED, (iii) the purchase price of shares shall be determined through consultation between the shareholder and the company, (iv) where the consultation fails to produce an agreement within specified period during which a request for purchase can be made, the company or the shareholder who has requested the purchase of shares may request the court to determine the purchase price and (v) where the court decide on the purchase price of shares, it shall compute it by a fair value in view of the status of assets of the company and other situations. \u0000Evaluating the price of the shares has been disputed due to the silence of the KCC etc regarding the specific meaning and method of calculating of such shares, and also the court decides it not according to the civil procedure process under the Korean Civil Procedure Act, but according to the procedure process under the Korean Non-Contentious Case Procedure Act and therefore the court decision standard of this issue is ambiguous. In evaluating the the price of the shares, courts deem a standard market price of the company as the fair value of the shares because courts believed that the standard market price of the shares has been decided on the stock market and market price deems reasonably among related parties. However, in the exception case of that severe distortion of the price arisen from intentional engagements by controlling shareholders in stock pricing is detected, court may conduct a judicial discretion granted to, and therefore, shall ex officio find facts and examine evidence as it deems necessary, in a sense of protecting minority shareholders from majority rules. The court decision rendered by the Supreme Court on April 14, 2022{2016Ma5394, 5395(byeonghap), 5396(byeonghap)} agreed to such court application. In the above case where dissenting shareholders experienced value discount arisen from severe distortion of stock pricing, court fixed and remedied such discount in evaluating the stock price. Given the institutional function of the appraisal rights of dissenting shareholders, court’s conclusion drew the result of protecting minority shareholders adequately and it seems to be adequate. And then, although it is unclear","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124040860","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Eine Anmerkung zu einigen Problemen im Zusammenhang mit der Verfügung über den Miteigentumsanteil und die gemeinschaftliche Sache","authors":"Euigeun Park","doi":"10.53066/mlr.2023.21.2.1","DOIUrl":"https://doi.org/10.53066/mlr.2023.21.2.1","url":null,"abstract":"Das Miteigentum liegt vor, wenn eine Sache mehreren Personen (mehr als zwei) nach Bruchteilen gemeinschaftlich zusteht(Art. 262 südkoreanisches Zivilgesetzbuch). Das Miteigentum ist in den Art. 262-270 südkoreanisches Zivilgesetzbuch geregelt und die Vorschriften über das Miteigentum finden auf ein anderes Vermögensrecht als Eigentum entsprechende Anwendung (Quasi-Miteigentum: Art. 278 südkoreanisches Zivilgesetzbuch). \u0000Beim Miteigentum kann jeder Miteigentümerüber seinen Anteil frei und unabhängig von den anderen Miteigentümern verfügen(Art. 263 südkoreanisches Zivilgesetzbuch). Die Miteigentümer können allerdings über die gemeinschaftliche Sache nur mit Zustimmung aller Miteigentümer verfügen(«Einstimmigkeitsprinzip», Art. 264 südkoreanisches Zivilgesetzbuch). Ebenfalls ist die Einstimmigkeit aller Miteigentümer für die Veränderung der gemeinschaftlichen Sache erforderlich(Art. 264 südkoreanisches Zivilgesetzbuch). Verfügt ein Miteigentümer ohne Zustimmung der übrigen Miteigentümer über die gemeinschaftliche Sache, ist diese Verfügung nur im Umfang von Miteigentumsanteil des Verfügenden wirksam. Der Gebrauch und die Nutzung der gemeinschaftlichen Sache durch den einzelnen Miteigentümer wird durch die Grösse seines Anteils bestimmt (Art. 263 südkoreanisches Zivilgesetzbuch). Jeder Miteigentümer ist entsprechend seinem Anteil berechtigt, die gemeinschaftliche Sache zu gebrauchen. Jeder Miteigentümer hat ausserdem den Anspruch auf einen seiner Quote entsprechenden Anteil des Fruchtertrages bezüglich natürlicher Früchte wie auch des finanziellen Ertrages der Sache. Die Verwaltung der gemeinschaftlichen Sache ist durch Stimmenmehrheit der Miteigentumsanteile beschlossen (Art. 265 S. 1 südkoreanisches Zivilgesetzbuch). Jeder Miteigentümer kann allerdings die zur Erhaltung der gemeinschaftlichen Sache notwendigen Massnahmen (Erhaltungsmassnahmen) allein treffen (Art. 265 S. 2 südkoreanisches Zivilgesetzbuch). \u0000In dieser Arbeit wird durch einen Vergleich des südkoreanischen Rechts mit anderen Rechtsordnungen versucht, die Probleme zu lösen, die im Zusammenhang mit der Verfügung über den Miteigentumsanteil (insbesondere: Teilveräußerung des Miteigentumsanteils und Quotenveränderung) und die gemeinschaftliche Sache (insbesondere: Rechtskonstruktion der Verfügung über die gemeinschaftliche Sache, die Behandlung des Fall, dass einer der Miteigentümer unwirksam verfügt und Verfügung eines Miteigentümers ohne Zustimmung der übrigen Miteigentümer über die gemeinschaftliche Sache) auftreten.","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134295552","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Analysis and Legal Review of Cases Related to Endoscopic Procedures","authors":"Sung-eun Kim, A-Reum Choe, Kyoung-hee Baek","doi":"10.53066/mlr.2023.21.2.61","DOIUrl":"https://doi.org/10.53066/mlr.2023.21.2.61","url":null,"abstract":"Endoscopic examinations and procedures are widely used to identify and treat digestive-oriented diseases, and are also essential items for the national cancer screening project, making it a familiar and frequently used medical area for the public and patients, and it is a very frequent medical area. \u0000Endoscopy and treatment play a key role in the prevention and treatment of diseases such as cancer. On the other hand, endoscopy and procedures, which are responsible for preventing and treating diseases, are invasive medical practices, and the risk of adverse consequences such as death and severe disability remains as surgical surgery, but public understanding and awareness may appear differently. In this regard, it is true that medical and legal reviews and approaches have been made to prevent medical accidents related to endoscopic procedures and reduce damage. However, previous studies have focused on considering some cases or cases, and despite their significance, systematic and analytical studies on endoscopic procedures have not been sufficiently conducted, and policy implications from an integrated legal and medical perspective have not been sufficiently derived. \u0000While the general standards and standards of medical practice such as endoscopic procedures are standard, the individual circumstances of the people and patients who are treated are different and difficult to unify. In addition to these individual characteristics of medical behavior, considering the essential characteristics of medical care such as invasion, risk, difficulty in predicting results, and irreversibility, we will derive empirical implications for preventing medical accidents through a specific and comprehensive view of precedents in medical civil litigation for endoscopy. \u0000Therefore, this paper examines major issues and results of various civil cases related to endoscopy procedures in various ways, and suggests measures to prevent medical accidents and guarantee patients' treatment options to improve national health and reduce disputes.","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"227 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132146592","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Review on the Concept of “Robot” as a Legal Term: as an Improvement plan of ｢Intelligent Robots Development and Distribution Promotion Act｣","authors":"J. Kim","doi":"10.53066/mlr.2022.21.1.51","DOIUrl":"https://doi.org/10.53066/mlr.2022.21.1.51","url":null,"abstract":"As the importance of the role of the state in the development of modern science and technology does not require additional discussion, so the development of our country's robot industry will ask for continuous review to see whether the current robot industry promotion legislation has sufficient content for robot industry promotion or it can be improved. Such review work is also an essential part for the realization of the principle of the rule of law that state intervention should always be carried out under the support of appropriate laws. \u0000For the effective conceptual regulation of “robot”, the target of policy, should be preceded to secure industrial competitiveness related to robot technology and promote policies for continuous development of robot industry, the study examines the appropriateness of the definition of “intelligent robot” of the current 「Intelligent Robots Development and Distribution Promotion Act」 - “The term \"intelligent robot\" means a mechanical device(including software required for operating the mechanical device) that perceives the external environment for itself, discerns circumstances, and moves voluntarily”(Article 2, 1.) - from the point of view of the analysis of systemicity(; Systematik) and understandability(Verständlichkeit) among the examination creteria of the legislative evaluation(Gesetzesevaluation). \u0000In conclusion, the concept of “intelligent robot” in the current law does not mean much in the legal system and it is not easy to understand either. And there is also a risk of unnecessarily reducing the applicable scope of the law in practice. So there is a need of deleting the modifier “intelligent” and it is proposed to use a semi-exemplary definition of an exemplary arrangement of targets for the robot industry promotion and support policy based on the concept of “robot” from a more technical point of view,","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115743347","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Aktuelle Probleme in der Diskussion zum strafrechtlichen Rechtsgut","authors":"Ulfrid Neumann, Sugil An","doi":"10.53066/mlr.2022.21.1.101","DOIUrl":"https://doi.org/10.53066/mlr.2022.21.1.101","url":null,"abstract":"<jats:p />","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"118 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125093210","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Review of Changes in the Media Industry in the Era of Platform and Improvement Potential through Application of Competition Law","authors":"Myungsu Hong","doi":"10.53066/mlr.2022.21.1.21","DOIUrl":"https://doi.org/10.53066/mlr.2022.21.1.21","url":null,"abstract":"The dominance of the platform is gradually expanding around the world, and this phenomenon is no exception in Korea. This phenomenon is particularly noticeable in the media industry, and the expansion of the platform's dominance is a factor that further intensifies the media crisis that has already been underway. Currently, online articles are provided through platforms, and as a result, media companies' dependence on the platform is increasing. In this situation, the self-sustaining foundation of the media company will weaken, and the core function of the media based on diversity will inevitably shrink. To solve this problem, measures have been proposed to increase the responsiveness of media companies to the platform or to regulate the relationship between the platform and media by a third party that guarantees fairness. The former is embodied in a way that grants neighboring rights to media companies under the Copyright Act to enhance the bargaining power of media companies that provide articles through the platform. The latter is typical of the operation of the \"News Alliance Evaluation Commission\" in Korea, which is based on the perception that arbitrary exercise of control of the platform can be suppressed by the committee deciding whether to maintain transaction relations between the platform and media companies in an independent position. Such attempts are expected to contribute to solving problems to some extent, but certain limitations are also being revealed. To supplement this, it is necessary to actively consider the application of competition laws. The media provides the basis for democracy, the principle of political order, and competition is a key factor in maintaining media diversity. This internal connection between the media and competition will not only support the validity of the application of the competition law to the media sector, but also serve as a basis for expecting the effectiveness of regulations under the competition law.","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131026449","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Study on the Purpose of the Damage Remedy System and the Concept of the Damage","authors":"Ohsang Kwon","doi":"10.53066/mlr.2022.21.1.1","DOIUrl":"https://doi.org/10.53066/mlr.2022.21.1.1","url":null,"abstract":"Among the various issues regarding the damage remedy system, the purpose and concept of the damage are the most fundamental ones that suggest a direction for how we should look at the damage in specific cases. Above all, regarding the purpose of the damage remedy system, the original one was the corrective justice, but in the contemporary welfare society, the distributive justice is being more and more emphasized. Our Civil Code pursues a fair and valid sharing of damage, which implies that the code accepts both corrective and distributive justices. \u0000Regarding the concept of damage, the Roman law did not clearly distinguish the contractual damage from the that of tort, but established the concept that the damage would involve violation and gain, and such concept would form the basis of the Medieval law and would also form the background of the damage in the contemporary civil laws. This study would review the concepts of the damage in German and French civil codes and then, discuss their concept in the US Tort. Specifically, this study examines the core disputes regarding the concept of the damage to better understand the core discussions of such concepts related with the concept of the damage as differential amount theory, normative concept of damage and foreseeability in an effort to make clear the discussions regarding the scope of the damage in Article 393 of our Civil Code. In particular, domestic majority of theories and judicial precedents adopt the Proximate casual relation theory as a criterion for decision on the scope of the damage, but Article 393 itself should function as criteria for decision on the scope of the damage. Hence, as the Paragraph 2 of Article 393 stipulates, it is judged that the foreseeability shall be the criteria for decision on the special damage, and that beside the principles of interest balancing and the foreseeability, other specific validity such as purpose of the norm should be considered for a fair distribution of the damage.","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125918395","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Legal Discussion on some Practical issues for the Contraction-out of Local Governments","authors":"Bong-Jae Kim, Sangmin Lee","doi":"10.53066/mlr.2022.21.1.77","DOIUrl":"https://doi.org/10.53066/mlr.2022.21.1.77","url":null,"abstract":"The Contraction out of local government has been administered without any definite standards, so some practical issues are exposed, where the only legal basis for it is a provision of the Local Autonomy Act. However, such practical issues consequently become the issue of whether it needs the consent of the local council. \u0000Even the contracting out of local governments based on laws and the contracting out between local governments, if necessary, should be subject to local laws and regulations and public agencies should be restrictively interpreted, ultimately to clarify the objects of the consent of local councils. How to administer the consent of local councils appears as an issue in regard to the councils’ authority to consent. \u0000Although the contracting out of local governments is intended to use private agencies’ expertise and ensure the public openness to citizens, by allowing them to participate in public sectors, its nature as public affairs does not change. It is thus necessary to consider the rule of local councils’ consent in terms of the contraction out of local governments, as a measure for controlling the general monopolization of heads of local governments and securing the efficiency and fairness of it, for executive agencies and local councils to pursue public benefit, based on the principle of check and balance.","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125708016","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}