독일(獨逸)의 항공(航空).우인정책(宇寅政策)

최준선,Choi, June-Sun 한국항공우주정책·법학회 1992 한국항공우주정책·법학회지 Vol.4 No.-

바르샤바협약상(協約上) Wilful Misconduct의 개념(槪念)

최준선,Choi, June-Sun 한국항공우주정책·법학회 1994 한국항공우주정책·법학회지 Vol.6 No.-

The concept of 'wilful misconduct" was initally used in article 25 of the Warsaw Convention of 1929. The concept was defined in the Hague Protocol, 1955, as having the following two differing concepts: i) "with the intent to cause damage" and ii) "recklessly and with the knowledge that damage would probably result." The concepts contained in the Hague Protocol were used in various international Conventions on carriage by sea, such as Article 2(e) and Article 3(4) of the Protocol adopted at Brussels on Feb. 23, 1968 to amend the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, signed at Brussels, Aug. 25, 1929(Hague-Visby Rules), Article 13 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, Dec. 13. 1974, Article 4 of the Convention on Limitation of Liability for Maritime Claims, 1976, Article 8(1) of the U.N. Convention on the Carriage of Goods by Sea, 1978(Hamburg Rules) and Article 21 (1) of the U.N. Convention on International Multimodal Transport of Goods, Geneva, 1980. The same concepts were also adopted in Article 746, 789-2(1), 789-3(2) of the Korean Maritime Commercial Law, revised in 1991. As of yet, the legal system of Korean Private Law recognizes only the concepts of "Vorsatz" and "grobe Nachlassigkeit", as is the case with German Private Law. The problem is that the concepts in the Convention do not coincide precisely with the concepts of "Vorsatz" and "grobe Nachlassigkeit". The author has conducted a comparative analysis of the treatment of the concepts of wilful misconduct and its varied interpretations, that is, "with the intent to cause damage" and "recklessly and with the knowledge that damage would probably result" in the Anglo-American law and in the continental European law in the following manner: 1. Background in which the concept of wilful misconduct was introduced in the Warsaw Convention. 2. The concept of "dol" in French private law. 3. The concepts of "Vorsatz" and "grobe Nachlassigkeit" in Korean private law. 4. Analysis of the concept of wilful misconduct in Anglo-American case law. 5. Analysis of the cases interpreting the concepts of "with intent to cause damage" and "recklessly and with knowledge that damage would probably result" in various jurisdictions. 6. The need to incorporate the concepts of "with the intent to cause damage" and "recklessly and with the knowledge that damage would probably result." 7. Faute inexcusable in French private law. Based upon the comparative analysis, the author points out the difference between the concepts of "wilful misconduct" or "with the intent to cause damage" and "Vorsatz", and between the concepts of "recklessly and with the knowledge that damage would probably result" and "grobe Nachlassigkeit" in the Convention and that of the Korean Private Law system. Additionally, the author emphasizes the importance of the unification in the interpretation of the provisions of the Conventions world wide.

商業信用狀의 法的 性質論

崔埈璿(Choi, June-Sun) 전북대학교 법학연구소 1985 法學硏究 Vol.12 No.-

주요국의 기업집단 소유지배구조에 대한 비교분석

최준선(June sun Choi) 한국비교사법학회 2016 비교사법 Vol.23 No.4

기업집단의 문제는 매우 다양하나, 필자는 첫째, 경제력 집중은 시장에서 독점적 지위를 남용하는 것도 아니고, 단순히 소수의 재벌에게 부가 편중되는 현상인데, 이것을 과연 규제할 필요가 있는가 하는 문제, 둘째, 기업을 지배하려면 반드시 그에 상응하는 주식을 소유하여야 하는가의 문제, 셋째, 대기업 그룹의 지위남용 규제 문제를 고찰하였다. 주요국의 기업집단 지배구조에 대한 비교분석에 관하여는 선행연구가 있으므로 필자는 위 세 가지 관점에서 선행연구를 재해석하고 기업집단규제에 대한 필자의 사견을 피력하였다. 한국 공정거래법 제3장은 경제력집중의 억제 라는 분명한 표현을 사용하고 있음에도 일부 학자들은 경제력집중억제가 아닌 경제력집중으로 인한 폐해를 방지하는 것이 목표라는 주장을 하기도 한다. 한국에서 기업집단법에 관한 독립된 법률을 제정하거나 회사법 내에 장이나 절을 두는 것이 타당하다는 주장도 있다. 그러나 현실적으로는 매우 어려운 일이고, 실익도 크지 않다. 일본에서처럼 기업집단법의 요소들을 회사법 내에 부분적으로 도입하는 시도가 타당해 보인다. 그 내용은 공정거래법에서 규제하고 있는 경제력집중규정의 전부폐지 내지 규제완화, 순환출자 및 지주회사체제로의 전환에 대한 자율권 보장, 회사법에서는 터널링과 프로핑 제거 논의 활성화 등이다. 특히 공정거래법상 기업집단에 대한 통제는 제거되어야 한다. 기업집단은 어떤 자본시장보다 효율적인 투자재원 배분기능을 갖고 있으며, 기업집단이 효율적인 노동시장이라는 점에 대하여 이의를 제기하는 자는 별로 없다. 반면, 기업집단은 경영권의 사적이익추구에 이용될 수 있는 고도의 위험을 내포하고 있어서, 소속 기업의 채권자, 소수주주 및 종업원들이 피해를 입을 가능성이 크다. 그러므로 필요한 것은 터널링과 프로핑에 대한 통제이다. 이 부분은 이해관계자 간의 이해충돌문제이므로 회사법에서 다루어야 하며, 현재 이미 많은 규정이 산발적으로나마 도입되고 있다. 회사법은 공정거래법의 많은 부분을 수용할 수 있는 방향으로 발전해 가야 한다. There are many various perspectives in viewing corporate groups. This writer discussed the corporation groups under three points of view, namely the general concentration of economic power, ownership- governance mechanism of the corporation groups and the abuse of the status of corporation in the market. There is also an argument that it would be reasonable to have a separate law on corporate groups or at least have a chapter or section in corporate law concerning this matter. There is no objection to the idea of regulating corporation groups by law. Several scholars insist that it is only reasonable to include a chapter or section covering corporation groups in the Korean commercial code. Realistically, however, this is very difficult and the benefits are not material, either. This is partly due to the difficulty of stipulating a comprehensive legal code that regulate all corporation groups due to the wide range of potential issues that might concern such corporate entities. It seems reasonable to adopt only partially into the existing corporate law some elements of corporation group law, as in the case of Japan. To be included would be a complete or partial deregulation of the general concentration rule, a guarantee of autonomy on circulatory investment and conversion to a holding company system, as well as tunneling and the removal of propping. In particular, the control on corporation group under the Fair Trade Act should be removed. Corporation groups have a more efficient resource allocation function than any other capital market, and there are rarely those who object to the idea of corporation groups offering an efficient labor market. Meanwhile, corporation groups carry a high risk of potentially being used for the private benefit of control, which in turn can causes damages to creditors of the company, minority shareholders and employees. However, corporation groups are, in most cases, a natural byproduct of pursuing economic efficiency or the result of a mandate given by the government as part of an industrial structural reform. What is needed is the control on tunneling and propping. This must be addressed by the corporate law as it is an issue of conflict of interest between the stakeholders. Many regulations are being adopted to address this issue, albeit in a scattered manner. Corporate law must progress in the direction of adopting the many parts of the Fair Trade Act.

형성권으로서의 주식매수청구권과 백지보충권에 관한 고찰

최준선(June-sun Choi) 한국기업법학회 2009 企業法硏究 Vol.23 No.1

Gestaltungsrecht is a unique terminology of German jurisprudence. To Korean scholars, it is little known what the Gestaltungsrecht means. The Gestaltungsrecht is a relative and subjective right, through which a new right can be founded or an existing legal relationship can be altered. The Gestaltungsrecht can be realized by a unilateral Gestaltungserklarung (empfangsbedurftige Willenserklarung) or by a right to litigate, so-called Gestaltungsklagerechte. Appraisal right is the right of shareholders to demand a fair payment ofsecurities when undergoing a merger and acquisition. The contents of theappraisal rights provided in the Korean Commercial Code (the KCC)Article 374-2 can be summarized as follows: If any of the following matters are adopted at a general meeting ofshareholders of a company, any dissenting shareholders may exercise theright to demand the company to purchase their shares. (ⅰ) merger, (ⅱ) transfer of all or substantial part of the business of a company or acquisition of all or substantial part of business of another company, and (ⅲ) comprehensive transfer of shares issued by a company or exchange of such shares with shares in another company. According to majority opinion, the legal nature of appraisal right is Gestaltungsrecht. After the realization of appraisal right stipulated in Article 374-2, the sales contract between the company and shareholders is definitely concluded. The problem is whether sales contract on stocks can be formed even when the price of the stocks is not yet negotiated between the company and the shareholders. If the contract is deemed to be formed, the company will be obliged to pay the price of the stocks and the interests therefrom immediately after the realization of appraisal right. The present writer disagrees. Both parties will still have to negotiate the price of stocks and without determining of the price, the company will not be obliged to pay the price and interests. Another noteworthy issue regarding the Gestaltungsrecht is the Ausfullungsbefugnis des Blankowechsel. Many Korean scholars insist that this Befugnis is governed by extinctive prescription (Verjarung). However, this writer believes that this right is controlled by limitation (Ausschlussfrist).

상법상 회사회계규정에 대한 소고

최준선(Choi, June-Sun),김춘(Kim, Choon) 성균관대학교 법학연구소 2011 성균관법학 Vol.23 No.2

The Korean corporate accounting regulations have legal limitations by nature in catching up with the changing accounting procedural trends home and abroad because they are subject to commercial law. That’s why, when it comes to accounting standards, it’s more desirable to follow a generally accepted fair and reasonable accounting practice, and to commit itself to executive orders, an enforcement ordinance, which will ensure a more flexible response to each case that can possibly happen. On the other hand, there are reasons to establish the accounting regulations in commercial law at first. Chief among them are to provide financial information with stake holders and to restrict profit sharing. It’s natural for accounting regulations to adopt the changes in corporate accounting that are happening around the world but they should not go beyond their reasons for existence. But it’s doubtful whether the recent revised regulations are still faithful to their original purposes because they don’t seem to give enough consideration to the possible conflicts that occur while trying to satisfy their own purposes. Seemingly they just tried to embrace the changed financial accounting standards on a full scale. The issues to be dealt with are as follows: in terms of accounting procedure, it’s unclear whether the K-IFRS can be regarded as a generally accepted accounting practice, which needs a stipulation in the law. And the commercial law should actively engage in accounting principles for small and medium-sized entities so that more reasonable accounting standardse be available in accordance with the size of a business. Regarding the kinds of financial statements and auditing procedures, in order to avoid confusions in procedure, professional jargons should be unified with the ones used for the Act on External Audit of Stock Companies. A reasonable reconciliation is necessary because the auditing procedures to financial statements are different from the external audit process regulated by the Act on External Audit of Stock Companies. Additionally, to produce consolidated financial statements, a statute auditor of a parent company should be entitled to the right to gain access to the information of its subsidiary companies, which should be stipulated in the Commercial Law. In terms of profit sharing restrictions, listed companies produce either separate financial statements or individual financial statements according to their status of whether to form consolidated financial statements or not. This double system creates two different standards in calculation procedure and accordingly different concepts in dividend and interests. When two companies with the same profits create different amounts of profits available for dividend, it deserves criticism that the commercial law has lost its fairness in profit-sharing, naturally decreasing its regulatory power, which thus needs revision. Other issues to resolve include the discrepancy on the concepts of capital between the K-IFRS and the Commercial Law, and the deduction of capital adjustments when calculating profits available for dividend. Successful handling of the issues mentioned above will make the accounting regulations satisfy their original existential purposes and naturally recover their regulatory power. These are also urgent issues to be resolved for Korean businesses in order to enhance their competitiveness in the global market.

항공운송증권

최준선 ( June Sun Choi ) 한국항공우주정책·법학회 1995 한국항공우주정책·법학회지 Vol.7 No.-

Article 3 Paragraph 1 of the Warsaw Convention regulates the requirements of passenger tickets, Article 4 Paragraph 3, the requirements of baggage tickets, Article 8, the requirements of airway bills. In this article the writer has discussed the legal nature of the documents of air carriage, such as air waybills, passenger tickets and baggage checks. Further, the writer has also discussed several issues relating to the use of the documents of air carriage under the Warsaw Convention. Article 3 Paragraph 2, as well as Article 4 Paragraph 4 and 9 provides that the carrier shall not be entitled to avail himself of the provisions of the Convention which evade or limit his liability. In particular, the Montreal Agreement of 1966 provides that the notification on the carrier`s liability in passenger ticket should be printed in more than 10 point type size with contrasting ink colors. However, another question is whether the carrier shall not be entitled to avail himself of the liability limit under the Convention in case the type size is below 10 points. The Convention does not specify the type size of certain parts in passenger tickets and only provides that the carrier shall not be entitled to avail himself of liability limit, when a carrier fails to deliver the ticket to passenger. However, since the delivery of passenger tickets is to provide an opportunity for passengers to recognize the liability limit under the Convention and to map out a subsequent measures, the carrier who fails to give this opportunity shall not be entitled to avail himself of the liability limit under the Convention. But some decisions argue that when the notice on the carrier`s liability limit is presented in a fine print in a hardly noticeable place, the carrier shall not be entitled to avail himself under the Convention. Meanwhile, most decisions declare that regardless of the type size, the carrier is entitled to avail himself of liability limit of the provisions of the Convention. The reason is that neither the Warsaw Convention nor the Montreal Agreement stipulate that the carrier is deprived from the right to avail himself of liability limit of the provisions of the Convention when violating the notice requirement. In particular, the main objective of the Montreal Agreement is not on the notice of liability limit but on the increase of it. The latest decisons also maintain the same view. This issue seems to have been settled on the occasion of Elisa Chan, et al. vs. Korean Airlines Ltd. The U.S. Supreme Court held that the type size of passenger ticket can not be a target of controversy since it is not required by law, after a cautious interpretation of the Warsaw Convention and the Montreal Agreement highlighting the fact that no grounds for that are found both in the Warsaw Convention and the Montreal Agreement. Now the issue of type size can hardly become any grounds for the carrier not to exclude himself from the liability limit. In this regard, any challenge to raise issue on type size seems to be defeated. The same issue can be raised in both airway bills and baggage tickets. But this argument can be raised only to the transportation where the original Convention is applied. This creates no problem under the Convention revised by the Hague Protocol, because the Hague Protocol does not require any information on weight, bulk, size, and number of cargo or baggage. The problem here is whether the carrier is entitled to avail himself of the liability limit of the provisions of the Convention when no information on number or weight of the consigned packages is available in accordance with Article 4 of the Convention. Currently the majority of decisions show positive stance on this. The carrier is entitled to avail himself of the liability limit of the provisions of the Convention when the requirement of information on number and weight of consigned packages is skipped, because these requirements are too technical and insubstantial. However

국내 항공운송법 제정안에 관한 고찰

최준선 ( June Sun Choi ) 한국항공우주정책·법학회 2008 한국항공우주정책·법학회지 Vol.23 No.2

The volume of air passengers and cargo transportation has increased rapidly in recent years. This trend will be even more noticeable as the high-tech service industry expands and the globalization progresses. In an effort to reflect and to cope with this trend, many conventions concerning international air transportation have been concluded. The Republic of Korea has also acceded to the Montreal Convention of 1999 on September 20th, 2007 which became effective on December 29th 2007. However, Korea currently does not provide any private law on the liability of domestic air carrier, leaving the regulation wholly to the general conditions of carriage of private air lines. These general conditions of carriage, however, are not sufficient to regulate the liabilities of domestic air carriers, because they cannot be fully recognized as a legitimate source of law applicable in the court. This situation is inconvenient for both air carrier and their customers. Thus, the Ministry of Justice of Korea has decided to enact a law that will regulate domestic air transportation, namely, Domestic Carriage by Air Act, as a part of the Korean Commercial Code. So was composed a special committee for legislation of the Domestic Carriage by Air Act. This writer has led the committee as a chairman. The committee has held in total 10 meetings so far and has completed a draft bill for the part VI of the Korean Commercial Code, Air Carriage. The essentials of the draft are as follows: First, the establishment of Part VI in the Commercial Code. The Korean Commercial Code already includes a series of provisions on road transportation in part II and carriage by sea in part V. In addition to these rules regulating different types of transportation, the Domestic Carriage by Air Act will newly establish part VI to regulate air carriages. Eventually, the Commercial Code will provide an integrated legal system on the transportation industry. Second, the acceptance of the basic liability system which major international conventions, such as Montreal Convention of 1999 and Guadalajara Convention of 1961, have adopted. This is very important, because the law of air carriage is unified worldwide through various international conventions, making it necessary and significant for the new act to achieve conformity between rules of international air carriage and that of domestic air carriage. Third, the acceptance of Rome Convention system on damage caused by foreign aircraft to third parties on the surface. Fourth, the application of rules on domestic road carriage or carriage by sea mutatis mutandis with necessary modifications. This very point is the merit of inserting domestic air transportation law into the Commercial Code. By doing so, the number of articles can be reduced and the rules on air carriage can conform to that of road transportation and carriage by sea. The bill is expected to be passed by the parliament at the end of this year and is expected to be effective by end of July 2009.

국제항공운송중에 생긴 화물손괴로 (貨物損壞) 인한 손해배상 - 대법원 1986. 7. 22 선고 82 다카 1372 판결 -

최준선 ( June Sun Choi ) 한국항공우주정책·법학회 1990 한국항공우주정책·법학회지 Vol.2 No.-

기업의 부정과 기업의 사회적 책임

최준선(Choi, June-Sun) 성균관대학교 법학연구소 2008 성균관법학 Vol.20 No.3S

At the beginning of the twenty-first century many corporate corruption scandals were revealed and corporate managers and directors had been often convicted of accounting hoax, securities fraud, insider trading and self-dealing etc. Until 1980s corporate managers and directors had comparatively little personal liability and director liability for duty of care violations was practically nonexistent. According to the globalization of corporate business, corporate corruption scandals have required massive social costs to take a counter-measure, because victims of the scandals are general public, spreaded internationally and damages of which were extravagant. This article discusses recent major corporate scandals arised in the United States, Germany, Janpan, Canada and China. These scandals have led to legislate the Sarbanes-Oxley Act in the United States, which has focused corporate governance on the creation of an adequate internal control structure and procedures for financial reporting. However, many corruption scandals have continuously revealed even after enactment of the Sarbanes-Oxley Act. Accounting scandal of the Krispy Kreme Doughnuts is one of typical example of these corporate corruption. Sarbanes-Oxley alone is not enough to combat corporate deception, theft, and greed. The writer emphasizes on the corporate ethics in line with the principles-based accounting. This article proposes that to overcome human greed, corporations should implement and enforce internal ethics programs from the bottom line of the corporate hierarchy.