계약해제의 효과와 그 법적 성질에 대한 검토- 비소급채권적효과설

오시영 한국민사법학회 2012 民事法學 Vol.58 No.-

There are conflicting theories on the legal nature of contract cancellation, such as the theory of direct effect, the theory of indirect effect, the theory of liquidation relation, and eclecticism. When the civil code was being established in Germany, German legislators considered how to deal with the legal effects of introducing contract cancellation to civil law. It can be seen in the statement of reasons for the legislation that they initially favored the theory of indirect effect, changed to eclecticism during the deliberation process, and then in the final settlement process changed to the theory of direct effect. Afterwards, during the process of establishing the national assembly, it was reasoned that the effects of contract cancellation were difficult to codify and their interpretation would be left to theories and precedents. Legislators focused instead on obligations for restoration, which could be regarded as the practical effects of contract cancellation, and achieved a legislative compromise of codifying those obligations. As a result, in Japan, which inherited the German civil code, Japanese legislators also preferred the theory of direct effect but are now gradually switching to the theory of liquidation relation, a phenomenon that is occurring in Korea as well. In the personal view of this writer, however,each of the above approaches has its own set of problems. Accordingly,the writer purposes to argue a new view that an original contract which has been cancelled loses its efficacy for the future and the obligations for restoration should appropriately be viewed as a special act of claim for restitution of unjust enrichment in other words, a theory of the effect of non-retroactive bond. According to this view, it can be judged that the intent of the parties regarding contract cancellation, or the cessation of obligation to perform the parts of a contract not yet performed due to its lapse, is recognized, and the basis of the claim for restitution of unjust enrichment regarding the parts that have already been executed and the basis of liability for damages that have actually occurred are also properly recognized.

독일에 있어서 해제효과론의 전개

정진명(Chung Jin-Myung) 한국재산법학회 2007 재산법연구 Vol.24 No.1

  The legal formation for rescission effect has had the interest of discussion for a long time. Direct effect theory has been a common view and precedents have adopted it invariably in Korea. But this theory of rescission effect is the imported one from Germany, which has been German dominant theory. In Korea, critical opinions of its theory became to appear with the change of its theory in Germany. This means that discussion on rescission effect in Korea is not based on its own independent theory butthe imported one from Germany, so it proceeded to be raised to its uselessness.<BR>  Rescission does not fully blend individual elements needed to establish new system, so it immanently includes uncertainties and obscurities. In Korea, they have not had the real discussion on rescission effect and the present discussion does not proceed over the introduction of the result discussed in Germany. Therefore, the analysis for the system of rescission itself is needed to clarify the discussion of rescission effect.<BR>  Minute analysis and check of the discussion on rescission effect in Germany is essential for Koreans to find their independent meaning of rescission effect. Because, in Germany, active arguments on rescission effect have been developed with the change of legislation and scholastic theory and the result of these arguments have been regulated through the law of obligations. This study analysed and considered German arguments of rescission effect in the category needed for the formation of the legal theory and the foundation of legislation.

소비트렌드의 범주화가 소비자의 태도 및 구매의도에 미치는 영향

전인수,윤은진 한국마케팅학회 2007 ASIA MARKETING JOURNAL Vol.8 No.4

The purpose of this paper is to study how to utilize the emerging trend, well being. The proposed categorization strategies based on schema theory are new/subtyping positioning and differentiated positioning based on schema plus tag. The effect of these two categorization on consumer's response, attitude and purchase intention, will be analyzed in this study. 3 among 6 hypotheses tested by laboratory experiment are supported and the results as follows. First, the new/subtyping positioning affects consumer's attitude more than the schema plus tagged positioning, however, any one does not have effect on purchase intention. Thus we can say that new/subtyping positioning is more effective strategy for utilizing the emerging trend, well being. Second, although both well-being involvement and categorization have an influence on attitude, there is no interaction effect between two constructs. However, the interaction effect between two constructs exist on purchase intention. This fact say that consumer involvement is a indicator of early adopter. Finally, there is no different effect between two categorization strategies influence on the family brand. This say there is no direction-of-comparison effect and attitude transfer between a new well-being brand and the family brand. 본 연구의 목적은 최근 유행하는 웰빙 트렌드의 범주화가 소비자의 태도 및 구매의도에 미치는 영향을 탐색적으로 연구하는 것이다. 이를 위해 스키마이론에 근거하여 웰빙제품을 기존제품과 완전히 다른 것으로 보는 신하위범주화 포지셔닝과 기존제품에 웰빙속성을 추가하는 차이성 포지셔닝이란 두 범주화가 소비자 반응(태도와 구매의도)에 미치는 영향을 6가지 가설로 검증하였다. 실험으로 검증한 결과 3가지 가설이 지지되었으며 요약하면 다음과 같다. 첫째, 신하위범주화 포지셔닝이 차이성 포지셔닝에 비해 태도에 미치는 영향은 크지만 구매의도에 미치는 영향은 차이가 없었다. 따라서 신하위범주화 포지셔닝이 효과적이라고 할 수 있다. 둘째, 웰빙관여도와 범주화는 웰빙제품 구매의도에서 상호작용효과가 있는 것으로 나타나 관여도가 얼리 어답터의 조건이 됨을 시사한다. 특히 저관여인 경우 차이성 포지셔닝이 신하위범주화 포지셔닝에 비해 구매의도에 미치는 영향이 큰 것으로 나타나 수명주기에 따라 포지셔닝전략이 달라질 필요가 있음을 확인할 수 있다. 끝으로, 기존브랜드에 미치는 영향은 범주화별로 차이가 없어 자사브랜드 간의 비교방향성효과는 확인할 수 없었다.

자유권규약의 효력, 적용, 해석 - 대법원 2016도10912 전원합의체 판결에 대한 평석을 중심으로 -

장태영(Jang Taeyoung) 대한국제법학회 2020 國際法學會論叢 Vol.65 No.2

대상판결(대법원 2016도10912 전원합의체 판결)은 기존 판례를 변경하여 양심적 병역거부권을 인정하였다. 그러나 대상판결은 효력, 적용, 해석이라는, 자유권규약을 비롯한 국제인권조약의 이슈 전반에 대하여 진일보한 판시를 하였다는 점에서 더 큰 의미가 있다. 특히 제2다수보충의견은 사법부에 의한 국제인권조약의 국내적 실행에 있어 중요한 선례가 될 것이다. 대상판결은 국제법과 국내법이 함께 대한민국 내 전체로서의 법질서를 형성하고, 자유권규약을 비롯한 국제인권조약이 ‘법’이라는 점을 다시 한 번 일깨워주었다. 법원은 특별한 입법조치가 없더라도 법원쟁송에서 법률과 동위인 자유권규약을 재판규범으로 직접적용할 수 있다. 자유권규약에 대하여 간접적용과 비자기집행성 법리를 원용할 근거도, 필요도 없다. 제2다수보충의견은 ‘역합치적 해석’을 배척하고 ‘국제인권조약 합치적 해석’을 전면에 내세웠고, 인권의 보편성이 원칙적으로 문화적 상대주의보다 우위에 있다고 전제하였다고 볼 수 있다. 또한 국제인권기구의 해석을 유력한 기준으로서 최대한 존중할 것을 주문하였고, 채택시점의 초안자의 의사보다는 현재시점에서 발견할 수 있는 당사국의 입장 · 실행과 국제법의 발전 · 진화 내용을 충분히 고려하는 유럽인권재판소의 ‘살아있는 문서’이론을 수용하였다. 이에 따라 자유권규약에 명시되지 않은 권리라도 해석상 도출할 수 있게 되었다. In a landmark en banc Decision 2016Do10912(esp. 2nd Concurring Opinion), the Supreme Court decriminalized conscientious objection, and more importantly, rendered step forward judgement about Domestic Legal Effect, Application and Interpretation of International Human Rights Treaties like the ICCPR. The ICCPR has an identical effect as that of a domestic law and can directly function as an adjudicatory norm. The ICCPR constitutes a law that directly applies without any legislative measure. The Decision clarified that construing laws in harmony with International Human Rights Treaties, in other words ‘Consistent Interpretation’ is a responsibility that the judiciary ought to uphold. It is tenable to deem that fundamental human rights are derivable through interpretation of the ICCPR in line with the spirit of times within democratic nations, even if there is no explicit provision in the ICCPR. It can be said that The Decision adopted ‘Living Document Theory’.

계약해제의 효과

손호영 中央大學校 法學硏究所 2005 法學論文集 Vol.29 No.2

A contract having the binding force to keep contract is the representative juristic action of the causes of the legal effects based on private autonomy. The matter of binding force and disorganization of a contract is very important in the law of contract. In case that the aggrieved party cannot attain th purposes of contract, the other party can acquit the contract to get out of the binding force. Korean Civil code provides some provisions of dissolution. But the provisions on the effect of dissolution are insufficient. Therefore the dispute on the dissolution of contract is focused on the structure of legal principles of the effect of dissolution of contract. There are two theories on the effect of dissolution in Korea. One is the theory of direct force, the other is the theory of liquidating relation. In this article, I would like to study critically about the theory of direct force from the point of theory of liquidating relation.

Consistent couple-stress theory for free vibration analysis of Euler-Bernoulli nano-beams made of arbitrary bi-directional functionally graded materials

Mohammad Zamani Nejad,Amin Hadi,Ali Farajpour 국제구조공학회 2017 Structural Engineering and Mechanics, An Int'l Jou Vol.63 No.2

In this paper, using consistent couple stress theory and Hamilton's principle, the free vibration analysis of Euler- Bernoulli nano-beams made of bi-directional functionally graded materials (BDFGMs) with small scale effects are investigated. To the best of the researchers' knowledge, in the literature, there is no study carried out into consistent couple-stress theory for free vibration analysis of BDFGM nanostructures with arbitrary functions. In addition, in order to obtain small scale effects, the consistent couple-stress theory is also applied. These models can degenerate into the classical models if the material length scale parameter is taken to be zero. In this theory, the couple-tensor is skew-symmetric by adopting the skew-symmetric part of the rotation gradients as the curvature tensor. The material properties except Poisson's ratio are assumed to be graded in both axial and thickness directions, which it can vary according to an arbitrary function. The governing equations are obtained using the concept of Hamilton principle. Generalized differential quadrature method (GDQM) is used to solve the governing equations for various boundary conditions to obtain the natural frequencies of BDFG nano-beam. At the end, some numerical results are presented to study the effects of material length scale parameter, and inhomogeneity constant on natural frequency.

색채 기반 건축적 시지각 효과에 관한 연구

김병수,추승연,서원덕 대한건축학회지회연합회 2007 대한건축학회지회연합회 학술발표대회논문집 Vol.2007 No.1

Color, which is functioning as a visual and emotional stimulation in our lives, has significance of its role as intermediating between environment and life. The color has an effect on various fields, in particular, it leads to the sensibility and psychological response of an observer being perceived as components of space with the form together in architecture. Therefore, it will improve residential environment if this visual perception effect and psychological response of the color is integrated with theory of color harmony. In this study based on the remark above, the emotion effect caused by characteristic of color and color contrast will be considered being carried with the investigation of the existing books and works about theory of color harmony. Further, as setting real axis and sensitivity axis for architectural psychology effect caused by color harmony scheme so that it can describe the walking direction of visitors, this study represents the purpose of establishing the relation among the color, architecture and human behaviors as suggesting systematic methodology, which can lead the walking direction only from the space effect and color that visitors recognize upon how color is used in consideration of intensity, accent and tone in architecture.

단체협약 종료의 효과와 새로운 대안의 모색

강선희(Sunhee Kang) 한국고용노사관계학회 2010 産業關係硏究 Vol.20 No.3

단체협약의 종료 이후에 그 효력을 존속시킨다는 취지의 별도 입법이 없는 우리나라에서는 단체협약이 종료된다면 어떠한 효력도 남기지 않으므로 여후효(사후적 효력)는 성립되지 아니하며 실효(失效)하게 된다. 관행적으로 단체협약의 종료 후의 근로관계에 대한 협약의 영향에 대해 여후효의 문제로 다루어왔으나 바로 앞서 말한 바와 같이 단체협약이 종료한다면 실효하게 되므로 계속적 효력을 갖지 않기 때문에 엄밀한 의미에서 여후효는 성립하지 않는다는 데에 이론이 없다. 이와 같이 단체협약이 실효된 후 새로운 단체협약이 체결되지 않을 경우 무협약 상태가 초래될 경우 종전 단체협약에 의해 규율되던 근로관계의 근로조건 및 집단적 노사관계에 관한 규정은 어떻게 되느냐의 문제가 발생한다. 이 논문에서는 단체협약의 직접적 효력에 대한 이해를 바탕으로 위의 사안에 대하여 외국의 입법례 및 해석론에서의 시사점을 얻어 해석론적ㆍ입법론적 측면에서 검토하였다. The existing research treat the employment relation after expiration of collective agreements as the problem of 'after-effect'. Under German law the after-effect(nachwirkung) of collective agreement expiration without being replaced by a new one(TVG §33 (5)). In such case, the provisions of the old agreement must be applied until replacement by a new agreement. But in the Korean labor law(Trade Union and Labor Relations Adjustment Act), 'after-effect' does not has any clause about the after-effect. There are two views on the direct effect of collective agreements, the first view is that there is incorporation of so-called the normative part of the agreement ('the standards concerning working conditions and other treatment of workers') into the individual contract of employment(incorporation theory). The normative provision continues to shape the employment contract even after the expiration of collective agreements. The second view is that the normative provision are governed by independent of the employment contract as a legal norm(independent governing theory). This article has the latter view. Under this view, this article examined not only the effect on employment relations after expiration of collective agreement(the expiry date of the existing agreement, termination of collective agreements etc.) but also the effect on collective relations. In conclusion, this article seeks legislative programs for improvement.

Buckling analysis of arbitrary two-directional functionally graded nano-plate based on nonlocal elasticity theory using generalized differential quadrature method

Maryam Emadi,Mohammad Zamani Nejad,Sima Ziaee,Amin Hadi 국제구조공학회 2021 Steel and Composite Structures, An International J Vol.39 No.5

In this paper the buckling analysis of the nanoplate made of arbitrary bi-directional functionally graded (BDFG) materials with small scale effects are investigated. To study the small-scale effects on buckling load, the Eringen’s nonlocal theory is applied. Employing the principle of minimum potential energy, the governing equations are obtained. Generalize differential quadrature method (GDQM) is used to solve the governing equations for various boundary conditions to obtain the buckling load of BDFG nanoplates. These models can degenerate into the classical models if the material length scale parameter is taken to be zero. Comparison between the results of GDQ method and other papers for buckling analysis of a simply supported rectangular nano FGM plate reveals the accuracy of GDQ method. At the end some numerical results are presented to study the effects of material length scale parameter, plate thickness, aspect ratio, Poisson’s ratio boundary condition and side to thickness ratio on size dependent Frequency.

Free vibrations analysis of arbitrary three-dimensionally FGM nanoplates

Dehshahri, Kasra,Nejad, Mohammad Zamani,Ziaee, Sima,Niknejad, Abbas,Hadi, Amin Techno-Press 2020 Advances in nano research Vol.8 No.2

In this paper, the free vibrations analysis of the nanoplates made of three-directional functionally graded material (TDFGM) with small scale effects is presented. To study the small-scale effects on natural frequency, modified strain gradient theory (MSGT) has been used. Material properties of the nanoplate follow an arbitrary function that changes in three directions along the length, width and thickness of the plate. The equilibrium equations and boundary conditions of nanoplate are obtained using the Hamilton's principle. The generalized differential quadrature method (GDQM) is used to solve the governing equations and different boundary conditions for obtaining the natural frequency of nanoplate made of three-directional functionally graded material. The present model can be transformed into a couple stress plate model or a classic plate model if two or all parameters of the length scales set to zero. Finally, numerical results are presented to study the small-scale effect and heterogeneity constants and the aspect ratio with different boundary conditions on the free vibrations of nanoplates. To the best of the researchers' knowledge, in the literature, there is no study carried out into MSGT for free vibration analysis of FGM nanoplate with arbitrary functions.