General Principles of Tort
Elements: (1) Tortious Act (2) Causation (3) Intention or Negligence (4) Illegality and Capacity for Liability. There are also special modifications to the rules in relation to compensatory damages, claims of embryoes, mitigation of compensation and prescription of claims.
Multiple Tortfeasors: (1) Joint Torts (2) Supervisory Liability (3) Vicarious Liability (4) Contractor Liability and National Compensation Liability (5) Liability of Structure and Animal Possessor Liability.
Special Principles of Tort
One may classify the types of tort in the civil code as follows:
1. Car Driver's Liability
2. Manufacturing Liability
3. Medical Negligence Liability
4. Environmental Pollution Liability
5. Defamation and Violation of Privacy
Monday, March 5, 2007
Wednesday, February 28, 2007
Types of Contract
Japanese and Korean contract law is based mostly on the Civil Code, which defines the rights and obligations of the parties in general and in certain types of contract, e.g. "mandate contracts", "bailment contracts" etc. Thus, the parties need not restate these statutory presumptions. As a matter of practice, contracts in Japan and Korea tend to contain very little detail, with the parties working out complications as they arise. Japanese and Korean contract law was heavily influenced by the German BGB and is therefore part of the civil law legal system.
The part of the Civil Code that defines the rights and obligations of the parties in general and in certain types of contract is Chapter II, although prinicples of a more general nature also apply to juristic acts (including contracts).
Chapter II - Contract
1.General Provisions
2. Gift
3. Sale
4. Exchange
5. Loan for Consumption
6. Loan for Use
7. Lease
8. Service
9. Contract for Work
10. Mandate
11. Bailment
12. Partnership
13. Life Annuity
14. Compromise
1. General Provisions
2. Gift
A contract of gift becomes effective when one of the parties declares his or her intention gratuitously to transfer property of his or her own to the other party and the other party agrees to accept it.
ISSUES
- Whether in writing
- Whether donor is liable for any defect or deficiency in the thing or right
- Periodical gift and death of donee
- Gift subject to charge and application of provisions relating to bilateral contracts
- Application of testamentary gift rules to gifts effective on death of donor
3. Sale
A sale becomes effective when one of the parties agrees to transfer a property right to the other party and the other party agrees to pay the purchase-price to the former.
ISSUES (General provisions)
- Unilateral promises to sell
- Rescission of sales when earnest money has been paid
- Expenses of Sale
- Application to contracts for value other than sales (eg.)
ISSUES (Effect of Sale)
ISSUES (Redemption)
And Responsibility of Security (담보책임)?
4. Exchange
A contract of exchange becomes effective when the parties agree to transfer to one another any property rights than the ownership of money. (NB. Special rule when part-cash payment)
5. Loan for Consumption
A loan for consumption becomes effective when one of the parties receives from the other party money or other things on the understanding that the former will return the money or things of the same kind, quality and quantity.
6. Loan for Use
A loan for use becomes effective when one of the parties receives a thing from the other party on the understanding that the former will return it after having gratuitously used and taken profits therefrom.
7. Lease
A lease becomes effective when one of the parties has agreed to allow the other party to use a thing and take profits therefrom and the latter has agreed to pay rent therefor.
ISSUES (General Provisions)
ISSUES (Effect of Lease)
ISSUES (Termination of Lease)
8. Service
A contract of service becomes effective when one of the parties agrees to render services to the other party and the latter agrees to pay the former remuneration therefor.
9. Contract for Work
A contract for work becomes effective when one of the parties has agreed to accomplish a certain work and the other has agreed to pay him remuneration for the result of such work.
10. Mandate
A mandate becomes effective when one of the parties has commissioned the other party to do a juristic act, and the latter has consented thereto.
ISSUES
- Duty of mandatary --> care of good manager
11. Bailment
Bailment becomes effective when one of the parties receives a certain thing under an agreement to keep it in his custody on behalf of the other party.
ISSUES
- Duty of bailee --> keeping thing by himself or herself; same care as own property
- Indemnification
- Return of thing
- Time and place of returning
- Application MM of provisions on mandate
- Bailment for Consumption (bailment where consumption allowed) --> Application MM of provisions on loan for consumption
12. Partnership
A contract of partnership becomes effective when each of the parties has agreed to carry on a joint undertaking by making a contribution thereto.
13. Life Annuity
A contract of life annuity becomes effective when one of the parties has agreed to deliver money or other things periodically to the other party or to a third person until the death of the party himself or herself, or of the other party or of a third person.
ISSUES
- Formation of Contract: (1) Offer and Acceptance (2) Annuity by Will (3) Legal Cause
- Legal Relationship: (1) Claimant of Payment (2) Payment Obligation
- Ending: (1) Rescission (2) Death of Obligee.
14. Compromise
A compromise becomes effective when the parties have agreed to terminate a dispute between them by mutual concessions.
The part of the Civil Code that defines the rights and obligations of the parties in general and in certain types of contract is Chapter II, although prinicples of a more general nature also apply to juristic acts (including contracts).
Chapter II - Contract
1.General Provisions
2. Gift
3. Sale
4. Exchange
5. Loan for Consumption
6. Loan for Use
7. Lease
8. Service
9. Contract for Work
10. Mandate
11. Bailment
12. Partnership
13. Life Annuity
14. Compromise
1. General Provisions
2. Gift
A contract of gift becomes effective when one of the parties declares his or her intention gratuitously to transfer property of his or her own to the other party and the other party agrees to accept it.
ISSUES
- Whether in writing
- Whether donor is liable for any defect or deficiency in the thing or right
- Periodical gift and death of donee
- Gift subject to charge and application of provisions relating to bilateral contracts
- Application of testamentary gift rules to gifts effective on death of donor
3. Sale
A sale becomes effective when one of the parties agrees to transfer a property right to the other party and the other party agrees to pay the purchase-price to the former.
ISSUES (General provisions)
- Unilateral promises to sell
- Rescission of sales when earnest money has been paid
- Expenses of Sale
- Application to contracts for value other than sales (eg.)
ISSUES (Effect of Sale)
ISSUES (Redemption)
And Responsibility of Security (담보책임)?
4. Exchange
A contract of exchange becomes effective when the parties agree to transfer to one another any property rights than the ownership of money. (NB. Special rule when part-cash payment)
5. Loan for Consumption
A loan for consumption becomes effective when one of the parties receives from the other party money or other things on the understanding that the former will return the money or things of the same kind, quality and quantity.
6. Loan for Use
A loan for use becomes effective when one of the parties receives a thing from the other party on the understanding that the former will return it after having gratuitously used and taken profits therefrom.
7. Lease
A lease becomes effective when one of the parties has agreed to allow the other party to use a thing and take profits therefrom and the latter has agreed to pay rent therefor.
ISSUES (General Provisions)
ISSUES (Effect of Lease)
ISSUES (Termination of Lease)
8. Service
A contract of service becomes effective when one of the parties agrees to render services to the other party and the latter agrees to pay the former remuneration therefor.
9. Contract for Work
A contract for work becomes effective when one of the parties has agreed to accomplish a certain work and the other has agreed to pay him remuneration for the result of such work.
10. Mandate
A mandate becomes effective when one of the parties has commissioned the other party to do a juristic act, and the latter has consented thereto.
ISSUES
- Duty of mandatary --> care of good manager
11. Bailment
Bailment becomes effective when one of the parties receives a certain thing under an agreement to keep it in his custody on behalf of the other party.
ISSUES
- Duty of bailee --> keeping thing by himself or herself; same care as own property
- Indemnification
- Return of thing
- Time and place of returning
- Application MM of provisions on mandate
- Bailment for Consumption (bailment where consumption allowed) --> Application MM of provisions on loan for consumption
12. Partnership
A contract of partnership becomes effective when each of the parties has agreed to carry on a joint undertaking by making a contribution thereto.
13. Life Annuity
A contract of life annuity becomes effective when one of the parties has agreed to deliver money or other things periodically to the other party or to a third person until the death of the party himself or herself, or of the other party or of a third person.
ISSUES
- Formation of Contract: (1) Offer and Acceptance (2) Annuity by Will (3) Legal Cause
- Legal Relationship: (1) Claimant of Payment (2) Payment Obligation
- Ending: (1) Rescission (2) Death of Obligee.
14. Compromise
A compromise becomes effective when the parties have agreed to terminate a dispute between them by mutual concessions.
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