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한국외국어대학교 법학연구소> 외법논집> 국제스포츠에 있어서 중재를 통한 분쟁의 해결 -유럽의 프로축구분쟁 관련 중재절차를 중심으로-

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국제스포츠에 있어서 중재를 통한 분쟁의 해결 -유럽의 프로축구분쟁 관련 중재절차를 중심으로-

Disputes Resolution in the International Sports through the Arbitration Proceedings - Focusing on the Professional Football Arbitration Case in European League -

김종호 ( Kim Jong-ho )
  • : 한국외국어대학교 법학연구소
  • : 외법논집 35권2호
  • : 연속간행물
  • : 2011년 05월
  • : 19-41(23pages)
피인용수 : 24건

(자료제공: 네이버학술정보)

DOI


목차

Ⅰ. 서 론
Ⅱ. 국제스포츠 분쟁사건의 관할법원과 준거법
Ⅲ. 국제스포츠 중재재판소의 분쟁해결 방법
Ⅳ. 유럽 축구산업에 대한 이해
Ⅴ. 국제스포츠 중재재판소의 유럽 프로축구 분쟁 관련 중재 사례연구
Ⅵ. 결 론

키워드 보기


초록 보기


						
Despite the vast and varied nature of international sport, the landscape of sports arbitration is dominated by one institution in particular, the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland. The CAS is colloquially referred to as a Supreme Court for sports disputes, and evidence of its influence is to be found throughout the sporting world.
Although sports arbitration shares many characteristics with commercial or investment arbitration, and although many sports arbitrators also sit in standard commercial cases, it also has many interesting features that distinguish it from non-sports-related arbitration. The most obvious and perhaps the most important differentiating feature of sports arbitration is its speed.
Swift resolution of sports disputes is also necessary due to the fact that the careers of sportspersons are generally very short, so any lengthy period of time spent in litigation would have a very significant negative impact on a sportsperson's career. This urgency stems from the fact that the entire sports industry revolves around a series of regular sporting events and competitions: for the resolution of a sports dispute to be effective, it generally must be concluded before a particular competition or event takes place.
The most striking example of the speed of sports arbitration is the Ad Hoc Division of the CAS. A no less impressive example of the speed of sports arbitration is the expedited proceedings which regularly take place under the standard arbitration rules of the various sports arbitration institutions.
There is very often a distinct inequality of arms between the parties in a sports arbitration, as the disputes generally involve one large body (typically a national or international federation) and one much smaller body or individual (a club or an athlete for example).
The emergence of the CAS as an "international supreme court" for sports disputes has finally provided greater consistency between legal decisions in the sports world and has created a body of case law (the lex sportiva) upon which sports arbitration users can rely. Aside from its speed, perhaps the most important advantage that sports arbitration has over classic commercial arbitration is the ease of enforcement of sports arbitration awards.
The type of disputes that most commonly arise before the CAS are appeals from decisions of FIFA, the world governing body for football, which has its own internal judicial system. This type of dispute typically arises from the termination of the employment contracts of players or coaches, or the transfer of players between clubs. As a consequence of such movement, remuneration is generally payable to the player's previous clubs, either pursuant to contractual agreements between the parties or according to the complex series of regulations that apply to football transfers, both in a national and international context.
In this research, I introduced the CAS system in general and examined professional football arbitration cases in European league. Hopefully, this study will contribute in the sport law field in Korea and I expect subsequent research should be formed into long lines by the prestigious scholars.

UCI(KEPA)

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발행기관 최신논문
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1공통참조기준초안(DCFR)의 동산담보권 등록규정에 관한 연구

저자 : 정소민 ( Chung So-min )

발행기관 : 한국외국어대학교 법학연구소 간행물 : 외법논집 35권 2호 발행 연도 : 2011 페이지 : pp. 1-18 (18 pages)

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There has been active scholarly discussions and legislative efforts to reform secured transactions law for movable assets and receivables in Korea over past ten years. As a result of these efforts, the Act on Security of Movable Assets, Receivables, etc. was passed by the Legislature in May 2010. This Act will introduce a new system of publicity by registration of security in movable assets and receivables, etc. from June 2012 and is expected to facilitate secured transactions for movable assets and receivables which have not been widely used before.
In line with the forthcoming new registration system in Korea, it will be meaningful to study on the registration system of security in movable assets provided in Draft Common Frame of Reference ("DCFR") since it is a model registration system which has a possibility to apply to all EU member countries.
According to Book IX. Proprietary Security in Movable Assets of DCFR, the main characteristics of the system of registration can be summarized as follow: it is a notice filing system; it is a direct entry system where entries can be made without involvement of a public registrar; it operates electronically so that it is accessible online; and it covers all types of proprietary security. It is also noteworthy the model registration system suggested in DCFR has a lot in common with modern rules on security in movable assets in UNCITRAL Legislative Guide on Secured Transactions.
An introduction of a new registration system will be the first step in terms of reform of Korean secured transactions law for movable assets. Therefore, comparative legal studies and empirical research should be continued in order to establish an appropriate legal system on security in movable assets in harmony with the Civil Code of Korea as well as model laws or legislative guide on secured transactions.

2국제스포츠에 있어서 중재를 통한 분쟁의 해결 -유럽의 프로축구분쟁 관련 중재절차를 중심으로-

저자 : 김종호 ( Kim Jong-ho )

발행기관 : 한국외국어대학교 법학연구소 간행물 : 외법논집 35권 2호 발행 연도 : 2011 페이지 : pp. 19-41 (23 pages)

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초록보기

Despite the vast and varied nature of international sport, the landscape of sports arbitration is dominated by one institution in particular, the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland. The CAS is colloquially referred to as a Supreme Court for sports disputes, and evidence of its influence is to be found throughout the sporting world.
Although sports arbitration shares many characteristics with commercial or investment arbitration, and although many sports arbitrators also sit in standard commercial cases, it also has many interesting features that distinguish it from non-sports-related arbitration. The most obvious and perhaps the most important differentiating feature of sports arbitration is its speed.
Swift resolution of sports disputes is also necessary due to the fact that the careers of sportspersons are generally very short, so any lengthy period of time spent in litigation would have a very significant negative impact on a sportsperson's career. This urgency stems from the fact that the entire sports industry revolves around a series of regular sporting events and competitions: for the resolution of a sports dispute to be effective, it generally must be concluded before a particular competition or event takes place.
The most striking example of the speed of sports arbitration is the Ad Hoc Division of the CAS. A no less impressive example of the speed of sports arbitration is the expedited proceedings which regularly take place under the standard arbitration rules of the various sports arbitration institutions.
There is very often a distinct inequality of arms between the parties in a sports arbitration, as the disputes generally involve one large body (typically a national or international federation) and one much smaller body or individual (a club or an athlete for example).
The emergence of the CAS as an "international supreme court" for sports disputes has finally provided greater consistency between legal decisions in the sports world and has created a body of case law (the lex sportiva) upon which sports arbitration users can rely. Aside from its speed, perhaps the most important advantage that sports arbitration has over classic commercial arbitration is the ease of enforcement of sports arbitration awards.
The type of disputes that most commonly arise before the CAS are appeals from decisions of FIFA, the world governing body for football, which has its own internal judicial system. This type of dispute typically arises from the termination of the employment contracts of players or coaches, or the transfer of players between clubs. As a consequence of such movement, remuneration is generally payable to the player's previous clubs, either pursuant to contractual agreements between the parties or according to the complex series of regulations that apply to football transfers, both in a national and international context.
In this research, I introduced the CAS system in general and examined professional football arbitration cases in European league. Hopefully, this study will contribute in the sport law field in Korea and I expect subsequent research should be formed into long lines by the prestigious scholars.

3일본가족법상 유류분제도의 재조명

저자 : 소재선 ( So Jae-seon ) , 양승욱 ( Yang Seung-uk )

발행기관 : 한국외국어대학교 법학연구소 간행물 : 외법논집 35권 2호 발행 연도 : 2011 페이지 : pp. 43-63 (21 pages)

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This study is about the change of the point of view on the Reserve in Japan and Korea. In 1977, Korean Civil Law adopt reserve system. The main reason of the adoption is to help the legal heir(s) to keep its livelihood after the death of the inheritee. And and to secure the equality between coheirs as the persons entitled to legally secured portions. Janpanese Civil Law adopt this system earlier than Korean Civil Law for the similar reason. Although the background of the adoption in Japan is different from Korean, the main reason of the adoption is very similar.
Japan started modernization of legal system earlier than Korea. Besides Japan has experienced economic development and change of social consciousness earlier than Korea. Korea experience the same or similar experience in Japan little bit later. So it is very important and useful to observation of the change of the view and article in japanese civil law for prospecting korean civil law.
Through observation of the change of the view on the reserve in Japan, we can discover new approach to solve problem related reserve and to suggest new way of application. The theories in Korean is mostly focusing mutual relation between the liberty of legator and the equality of right of a legal heir's to inherited property. but the theories in Japan may be focusing on even consultation to stop infringement in advance. Therefore the some legislations was available to stop dispersing of property. Despite risk of infringement of reserve, these legislations opened a way to deal with in new problem of reserve case by new social and economic needs. These facts are very suggestive to theories in Korea and It can help resolve surrounding reserve by changing point of view on reserve in Korea.

4천안함 침몰과 연평도 포격 그리고 국제형사법원

저자 : 문규석 ( Moon Kyu-seok )

발행기관 : 한국외국어대학교 법학연구소 간행물 : 외법논집 35권 2호 발행 연도 : 2011 페이지 : pp. 65-83 (19 pages)

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There was an accident sinking of the Republic of Korea(ROK) Navy Ship called Cheonan(PCC-772, 1,200ton corvette) on 26 March 2010 in the territorial waters of the ROK 2.5km off the south-western coast of Baekryong Island, which resulted in the death of 46 military persons. Korea Government organized the Joint Civilian-Military Investigation Group of the ROK with the participation of international experts from 4 countries(Australia, Sweden, UK, and USA), because of not knowing the reasons why Cheonan Navy Ship was sinking at that time. Based on material evidence obtained through scientific and objective investigation, it was determined that the sinking of Cheonan Navy Ship was caused by an underwater explosion by a torpedo made in North Korea after 55 days from the day occurred the accident. Of course, Democratic People's Republic of Korea(DPRK) totally rejected the investigation result and contended that the incident is a fabricated scenario, purely for the political and military purposes of the USA.
There was an another accident on 23 November 2010 since the sinking of Cheonan Navy Ship. So called, DPRK fired on the Yeonpyeong Island about 170 shells without any lawful reasons. The Result was killed 2 marines and civilian of ROK respectively and injury of many others.
The Office of the Prosecutor has received communications from a NGO(Non-Governmental Organization) alleging that DPRK forces committed war crimes in the territory of the ROK. Prosecutor of ICC(International Criminal Court), Luis Mereno-Ocampo, confirmed that the Office has opened a preliminary examination to evaluate if two incidents constituted war crimes under the jurisdiction of the Court.
The author has examined whether the Prosecutor of ICC will request the issuance of a warrant for the arrest of the person responsible for war crimes. The Prosecutor of ICC has a right to do preliminary examination because ROK is a state party of ICC, and two accidents had occurred in the territory of ROK. But, after deep researching this topic, I can not apply the accident sinking of Cheonan Navy Ship on Rome Statue of international Criminal Court because this accident is not war crimes or crimes against humanity. The shelling of Yeonpyeong Island is not also satisfied with the requirement assessing gravity which importantly considers the number of victims of particularly serious crimes such as killing. Therefore, the Prosecutor of ICC can arrive a conclusion that the Rome Statute requirements to seek authorization to initiate an investigation in the accidents have not been satisfied at this stage.

5영국의 환경정보공개에 관한 법제 연구

저자 : 소병천 ( So Byung-chun )

발행기관 : 한국외국어대학교 법학연구소 간행물 : 외법논집 35권 2호 발행 연도 : 2011 페이지 : pp. 85-99 (15 pages)

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Access to environmental information is one of basic civil rights; moreover, it plays a role in improving environment protection through the public participation. Most of developed countries in Europe have independent laws and regulation which provide access to environmental information for EC Directives and Aarhus convention. Korean, like the US, does not have an independent law related access to environmental information; however, Korean government has prepared to legislate such laws. This paper explores the UK Environmental Information Regulation 2004 in order to introduces UK experience of those areas. Therefore, this paper review not only UK environmental informational disclosure legal system but also UK experience such as case laws and government guidance law.
The Environmental Information Regulations 2004 (EIR) is a UK statutory instrument that provides a statutary right of access to environmental information held by UK public authorities. The regulations came into force on 1 January 2005. According to the regulation, environmental information includes information about air, water, soil, land, flora and fauna, energy, noise, waste and emissions. Environmental Information also includes information about decisions, policies and activities that affect the environment. The coverage of the Environmental Information Regulations is greater than that of the Freedom of Information Act 2000. The Freedom of Information Act sets out a list of the bodies and classes of bodies that are public authorities, the EIR is less prescriptive. There are two institutions for its implementation; the Information Commissioner and the Information Tribunal. The exemptions that public sector authorities can claim under the Regulations are structured somewhat differently as well. In many cases they are narrower in their scope and application. Public authorities have 20 working days from the receipt of a request to provide the information to the requester. When we prepare the legislation of environmental information acts, it is necessary to review not only the law and regulation but also UK's experience such as court's case. Moreover, it is necessary to establish the independent institution which would be appeal body deciding disclosure of environmental information.

6법인에 있어서의 인식의 귀속과 인식의 책임 - 대표권남용시 인식귀속 부정여부와 저장된 정보에 대한 인식책임을 중심으로 -

저자 : 이병준 ( Lee Byung-jun )

발행기관 : 한국외국어대학교 법학연구소 간행물 : 외법논집 35권 2호 발행 연도 : 2011 페이지 : pp. 103-122 (20 pages)

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Wissenszurechnung ist in der koreansichen Rechtsprechung und Lehre kein intensiv besprochenes Thema. Jedoch tauchen mehr heufiger Rechtsprechungsfälle auf, in denen dieses Thema in Bezug auf juristische Personen erläutert werden mussen. In diesem Aufsatz wird zu erst versucht auf Grundlage des § 116 KBGB den Anwendungsbereich der Wissenszurechung und Wissenshaftung zu erklären, was mitlerweile in der deutschen Rechtsprechung und Lehre nun mehr feste Theorie geworden ist.
Auf Grundlage dieser theoretischen Erläuterung werden durch zwei Fälle, die in der Rechtsprechung behandelt worden sind, zwei Themen behandelt. Das erste ist, wann innerhalb der juristischen Person gespeicherte Daten als Wissen anerkennt werden kann. Das zweite ist, ob das Wissen eines Organs(oder eines Vertreters) zugerechnet werden kann, wenn dieses Organ(oder dieser Vertreter) seinen Vollmacht missbraucht.

7부동산 민간경매에 관한 연구

저자 : 류창호 ( Ryu Chang-ho )

발행기관 : 한국외국어대학교 법학연구소 간행물 : 외법논집 35권 2호 발행 연도 : 2011 페이지 : pp. 123-138 (16 pages)

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The essence of the civil execution such as judicial foreclosure is sales. But civil execution system, unlike the contract for sale, doesn't ensure the maximum benefit to the creditors and debtors, but realize creditor's claim fairly by force ensuring his second best interests. Therefore current civil execution system have limits immanently that lower efficiency and economics than contract for sale.
Real estate private auction that came into being spontaneously by market is only at an early stage, that it lacks analysis on its legal relations, the right function and adverse effect, etc. Yet it has many merits, for example reduction of the period spent on transactions, guarantee of reasonable purchase price through competitive bidding, enhance the safety of transactions through rigorous analysis of the right.
This article was examined in terms of two viewpoints about real estate private auction. The first is on its appropriateness and legal relations of contract of real estate private auction, the second is a review on the possibility of transfer contract of real estate private auction to parts of judicial foreclosure.
Current contract of real estate private auction is taken effect only kinds of contract without basis of law. So I examined contract of real estate private auction by method of contract law, and proposed possibility of transfer real estate private auction to as a optional parts and preceding process of judicial foreclosure process.
But, this article is only sketch on real estate private auction as a new system against traditional judicial foreclosure process. So, I think it's needed to be studied more detail and concretely about its systematization.

8현대 계약법상 신의칙의 법규범성과 그 적용의 확장에 관한 고찰

저자 : 김재완 ( Kim Jae-wan )

발행기관 : 한국외국어대학교 법학연구소 간행물 : 외법논집 35권 2호 발행 연도 : 2011 페이지 : pp. 139-163 (25 pages)

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The classical theory of the law of contract has been developed under the principle of liberty of contract on the basis of free will of the parties involved in the contract. But, growth of industry and monetary in contemporary society give rise to centralization of capital to specific minor social classes. As a result, discrepancy in social and economical power among individuals have grown wider and wider. Specifically, behemoths and expert groups have occupied a prominent position at the expense of powerless consumers in the real contract world.
The Inferior positions of parties in the contract bring about a serious imbalance with regard to the freedom of conclusion of a contract and decision contents of a contract. With these injustices in mind, the purpose of this study is to make a justification of contract contents by setting consistent limitations on the principle of free will in the contract.
Because legal regulations tend to be mostly vague and abstract, however, contract disputes that occur in legal practice cannot be fully settled under the conventional contract laws. In this regard, the main theme of this study is to establish legal theories that can close the gap between positive law and the idealism of serving justice. Essential to this legal objective is the legal principle of good faith.
This principle, however, tends to be extremely abstract and overgeneralize because of which this principle has been criticized for undermining legal stability. In spite of this, the principle of good faith should be applied to correct or repair imbalances if contract contents or legal regulations do not correspond to specific social justices. The principle of good faith imposes specific obligations upon the parties in contract relations. This principle levies certain collateral obligations on even the parties who are arranging to conclude contracts. As a basis for discussion and theorization in this study Professor Macneil's Relational Contract Theory is referred to and quoted.

9보험법상 협정가액에 대한 연구

저자 : 최병규 ( Choi Byeong-gyu )

발행기관 : 한국외국어대학교 법학연구소 간행물 : 외법논집 35권 2호 발행 연도 : 2011 페이지 : pp. 165-180 (16 pages)

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The evaluation of insurable interest is very important in insurance contract. But it is not easy. Disputes are arising from the evaluation. Therefore the insurance contract law allows the evaluation of insurable interest by the contract parties. § 670 korean commercial code and § 76 german insurance contract law(VVG) are the regulations that allow the evaluation of insurable interest. Because of this agreed value, unfair profit occurs sometimes. But it is justified because it is not remarkable difference. The difference between the real value of insurable interest and the agreed value is not noticeable, because the real value of insurable interest is regarded as insurance amount when the difference is remarkable. The prohibition of unfair profit and real loss indemnification are important rule in non-life insurance contract. But it is not regulated in insurance contract law expressly. The german supreme court has decided that 121% difference is not noticeable. It shows that the principle of prohibition of unfair profit should not be applied so strictly. We should also regard this change in germany. Nowadays many countries are making effort to get better insurance contract law. Germany has reformed the insurance contract law thoroughly in 2007. Japan has new, separate insurance contract law since 2008. The current korean insurance contract law in korean commercial code was effected in 1963. It has many problems. The reform discussion about korean insurance contract law is being done in korean national assembly. By the reform discussion in korea we can also consider adopting more detailed regulations about agreed value. By the work the german example(§ 76 VVG) can give us good suggestions.

10클라우드컴퓨팅에 관한 사법적 검토 -서비스이용계약관계에서의 문제점을 중심으로-

저자 : 성준호 ( Sung Joon-ho )

발행기관 : 한국외국어대학교 법학연구소 간행물 : 외법논집 35권 2호 발행 연도 : 2011 페이지 : pp. 181-198 (18 pages)

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Claud Computing bzw. Rechnerwolke ist primär der Ansatz, abstrahierte IT-Infrastrukturen (z.B. Rechenkapazität, Datenspeicher-, fertige Software- und Programmierumgebungen als Service) dynamisch an den Bedarf angepasst uber ein Netzwerk zur Verfugung zu stellen. Die Verarbeitung der Daten durch Anwendungen wird dabei fur den Nutzer transparent, verblasst somit gewissermaßen in einer "Wolke". So lassen sich Computerspiele durch Cloud Computing besser genießen. Aber ein Gesetz uber Cloud Computing gibt es noch nicht. Deswegen muss uber gesetzliche Probleme des Cloud Computing diskutiert werden. Dienstleistungsverträge zwischen Unternehmern und Nutzern können zu Problemen fuhren. Insbesondere sind wichtige Fragen: Änderungen der Nutzungsbedingungen, Notifizierung von Leistungsänderungen oder Unterbrechungen, Kundigung oder Rucktritt vom Vertrag, Sammlung und Nutzung von persönlichen Daten. AGB des Cloud Computing soll gemäß den gesetzlichen Verfahren geändert werden. Der Unternehmer muss den Kunden uber Änderungen und die Beendigung der Dienstleistungen angemessen informieren. Der Cloud Computing Dienstleister muss bei der Sammlung und der Nutzung der persönlichen Daten der Benutzer schutzen. Daruber hinaus ist die Datensicherheit wichtig. Daher muss das Unternehmen die Sicherheit von Informationen gewährleisten.

12
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KCI등재

법학연구
27권 3호 ~ 27권 3호

연세 글로벌 비즈니스 법학연구
10권 1호 ~ 10권 2호

KCI등재

형사정책
31권 2호 ~ 31권 2호

KCI등재

비교형사법연구
21권 2호 ~ 21권 2호

KCI등재

국제거래법연구
28권 1호 ~ 28권 1호

KCI등재

일감법학
43권 0호 ~ 43권 0호

KCI후보

영남법학
48권 0호 ~ 48권 0호

KCI등재

민주법학
70권 0호 ~ 70권 0호

BFL
89권 0호 ~ 89권 0호

KCI등재

법조
68권 3호 ~ 68권 3호

KCI등재

경찰법연구
17권 2호 ~ 17권 2호
발행기관 최신논문
자료제공: 네이버학술정보
발행기관 최신논문
자료제공: 네이버학술정보

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최근 열람 자료

맞춤 논문

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