계약이행보증금에 관한 연구

구재군(Jae Koon Koo) 중앙법학회 2011 中央法學 Vol.13 No.3

In this thesis, I researched major legal subjects of a contract deposit. To begin with, I studied the regal nature of a contract deposit. In case that a contract has a method of belonging of a contract deposit when the default on obligations has arisen, the regal nature of a contract deposit is a kind of a security for damages. While the contract has not a method of belonging of a contract deposit, the contract deposit is a kind of a cancellation charge, and so it can be admitted as a previously fixed amount of damages or a penalty for a breach of a contract. It is determined by interpretation of a contract whether a cancellation charge is a previously fixed amount of damages or a penalty for a breach of a contract. It is presumed that a cancellation charge is a previously fixed amount of damages by article 398(4) of Korean civil law, so a cancellation charge is a previously fixed amount of damages unless a specific agreement has been made between the parties. Secondly, I studied the requisite for payment of a contract deposit. If a contractor(a person who gives out a contract for the work) wants to claim the contract deposit from the guarantor, the warranty events or insured events should occur before. It become an issue when the warranty events or insured events occur. It is not easy to standardize and to determine whether the termination of a contract is needed or not when the contractor wants to claim the contract deposit from the guarantor. One adjudication of the Supreme Court of Korea ruled that the termination of a contract is needed, and the other adjudication of the Supreme Court of Korea ruled that the termination of a contract is not needed. However we cannot say these two adjudications are contradictory to each other. Thirdly, I studied the coverage of a contract deposit. In case that the legal nature of the contract deposit is a penalty for a breach of a contract, all the contract deposit belongs to the contractor. In case that the legal nature of the contract deposit is a previously fixed amount of damages, in principle the contract deposit covers all damages from which the contractor suffers owing to the default of the other contractor(a person who contracts to do the work).

전자거래에 있어서 계약의 성립에 관한 법적 검토

구재군(Jae Koon Koo) 단국대학교 법학연구소 2001 법학논총 Vol.25 No.-

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이혼제도의 개선방안 - 최근의 입법논의와 관련하여

구재군 ( Jae Koon Koo ) 단국대학교 법학연구소 2006 법학논총 Vol.30 No.1

Two bills which take aim at reformation in the law of divorce have been put forth by members of the National Assembly recently. One has been put forth by 37 representatives including Eun Young Lee, and the other has been put forth by 27 representatives including Seung Hee You. The main subject of the bills is an introduction of the system of `period for reflection and consideration` and of `consultation`. However the contents or opinions of the two bills are contrary to each other in some points. The former forces the married couple who want divorce to reflect whether the divorce is unavoidable or not, but the latter leaves the matter to the discretion of the couple. We should choose one of them or make a compromise between them. In this thesis, I proposed the point to be considered in reforming in the law of divorce. I introduced the contents of the two bills and set forth my opinion.

법학전문대학원제도의 도입과 법학교육방법

구재군 ( Jae Koon Koo ) 단국대학교 법학연구소 2003 법학논총 Vol.27 No.-

조망권에 관한 판례연구

구재군 ( Jae Koon Koo ) 한국환경연구원 2008 환경정책연구 Vol.7 No.3

A Study on the Judicial Precedent regarding a Right to a View In this treatise I have advanced a theory to regulate legal problems rationally arising from a right to a view and I have checked some precedents dealing with the temporary injunction, compensation for damage and the demolition of a house(mainly apartment) owing to an infringement of a right to a view. Relating to an infringement of a right to a view, there are more lawsuits which are instituted together with an infringement of a right to enjoy sunshine than lawsuits related only to the right to a view. In the cases of an infringement of a right to a view connects with educational or religious environment, the court made it a decision that the construction is prohibited from constructing more than a certain-story building to protect a right to a view. Plaintiffs won a case their suit in the original judgement regarding a claim for damages owing to an infringement of a right to a view, but the Supreme Court reversed the decision of a lower court. The right to a sky view should not be infringed in case of a dwelling house which is not built for the purpose of business or a view.

공통참조기준초안(DCFR)에서의 프랜차이즈에 관한 연구

구재군 ( Jae Koon Koo ) 경상대학교 법학연구소 2013 법학연구 Vol.21 No.1

I studied the provisions (including Comments and Notes) concerning franchise agreement in the Draft Common Frame of Reference(hereinafter ‘DCFR’). As the obligation of a franchisor. DCFR stipulates the obligations of the permissions to use intellectual property rights and know-how and the obligations of assistance, supply, giving information during the contractual performance, a warning of decrease in supply capacity, establishing a good reputation of network and advertising etc. (DCFR IV.E.-4:201~207) DCFR codifies the issues of law regarding franchise agreement. For example, as the obligation of a franchisor, DCFR stipulates the obligations of the permissions to use intellectual property rights and know-how etc. Furthermore, concerning pre-contractual information DCFR stipulates the obligations of the relevant intellectual property rights and the characteristics of the relevant know-how etc.「Fair Transactions in Franchise Business Act」 of Korea Article 2(10) does not stipulate such a clause. I think that the codifying of the relevant intellectual property rights and the characteristics of the relevant know-how and so on is necessary because they play an important role in the franchise system. As the obligation of a franchisee, DCFR stipulates the obligations of paying royalties and other periodical payments, giving information during the contractual performance, following business method and instructions and allowing inspection etc. (DCFR IV.E.-4:301-304). Jens Ekkenga had an in-depth study of the obligation of an increase in sales of products. Michael Martinek says that the obligation of an increase in sales of products is main obligation of a franchisee. However, DCFR does not codify the obligation of an increase in sales of products. I think that the obligation of an increase in sales of products is not the main obligation of franchisee, but the obligation of paying royalties may be the main obligation of franchisee according to circumstances.

교통소음과 법적대응

구재군 ( Jae Koon Koo ) 한국환경법학회 2010 환경법연구 Vol.32 No.1

This treatise deals with the legal problems of traffic noises. This treatise deals with the remedies against the noise of the traffic, especially a compensation claim, including the injunction claim against traffic noises, and also deals with laying the responsibility on whom, the requisites and the restrictions of the responsibility for a compensation for damage etc. The Seoul Central District Court 2008. 12. 17, 2007Gahap51029 (hereinafter the 2007Gahap51029 precedent) decided on the living conditions specifically, and set the new standard for judgment of `natural changes attendant on social evolution`. In relation to the `preoccupancy` rule, the 2007Gahap51029 precedent is substantially different from the other precedents. I doubt whether we need to accept the new test of `natural changes attendant on social evolution` instead of the existing test of the limit of endurance. Even if the 2007Gahap51029 precedent is correct, we should not accept the meaning of the 2007Gahap51029 precedent as a reject of the injunction or a compensation claim generally. We should make a judgment case by case prudently. The Korean constitutional law has the regulation on the environmental rights. However, the 2007Gahap51029 precedent advance a theory on the premise that we cannot claim for damages only according to the environmental rights in case that concrete regulations relating to the environmental rights do not exist. The one who suffers from the noise of the traffic can claim for damages against the house construction company in case that the company hides the information or provides the incorrect information on the traffic noise etc. The soundproof facilities which absorb the noise of the traffic instead of the transparent soundproof facilities are recommended because of an excellent soundproof effects.

공동주택분양자의 하자담보책임기간에 관한 연구 - 헌법재판소 2008.7.31. 선고 2005헌가16 결정과 관련하여 -

구재군 ( Koo Jae-koon ) 한국외국어대학교 법학연구소 2009 외법논집 Vol.33 No.1

In this treatise I have studied the Period of Warranty of an aggregate building seller in relation to the decision of the constitutional court. Before a revision of an Housing Act on May 26, 2005, both the Housing Act and an Act on the Ownership and Management of Aggregate Buildings regulated the warranty of an aggregate building respectively. The Supreme Court of Korea ruled that the owner of an aggregate building can make a claim for warranty within 10 years including all parts of a building. A short-term warranty under the Housing Act does not have an influence on exercising a right of claim for warranty under the Act on the Ownership and Management of Aggregate Buildings. The National Assembly of Korea revised both the Housing Act and an Act on the Ownership and Management of Aggregate Buildings simultaneously on May 26, 2005, so the article 46 of the Housing Act precedes the Act on the Ownership and Management of Aggregate Buildings. Many scholars said that the revised Housing Act was unconstitutional, so a high court of justice asked for the decision of unconstitutionality. The Constitutional Court of Korea ruled that an article(an additional clause 3) of the Housing Act was unconstitutional. The Constitutional Court of Korea rejected the application that the article 46(1) and (3) of the Housing Act were unconstitutional, because the articles were not set forth as a premise in this case concerned. I think the articles 46(1) and (3) of the Housing Act are unconstitutional, so they should be ruled unconstitutional in case that the articles could be applied to the right case which satisfies the conditions when a lawsuit will be brought to the court someday.

담보제도의 개선방안 - 저당권의 유동화 -

구재군(Jae Koon Koo) 단국대학교 법학연구소 2001 법학논총 Vol.25 No.-

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임차인의 채무불이행으로 인한 임대계약의 해지와 매수청구권

구재군(Jae Koon Koo) 단국대학교 법학연구소 2000 법학논총 Vol.24 No.1

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