Kasan Insight :: 과학, 기술 그리고 법

- 제약/화학/바이오 분야의 실용적 법률정보와 해결방안

의정부지방법원 2018나212116 판결에서 성추행 피해자가 가해자를 상대로 하는 민사상 손해배상청구 소멸시효의 기산점 '손해 및 가해자를 안 날'은 형사재판 1심 판결이 있었던 때로 본다는 뉴스입니다.

민법 제766조 1항은 불법행위로 인한 손해배상 청구권이 손해 및 가해자를 안 날로부터 3년간 행사하지 않으면 시효로 소멸된다고 규정하고 있는데, '손해 및 가해자를 안 날'은 피해자가 손해와 가해자를 현실적이고도 구체적으로 인식한 날을 의미하고, 여기서 손해의 발생뿐만 아니라 위법한 가해 행위의 존재, 가해 행위와 손해 사이의 인과관계 등 불법행위 요건 사실까지 인식한 날을 의미하며, 이는 손해배상 청구가 사실상 가능하게 된 상황을 고려해 합리적으로 인정해야 한다는 입장입니다..

피고 가해자가 불법행위 시점은 물론 고소일 또는 기소 일부터 모두 3년이 지났으므로 손해배상청구권의 소멸시효가 완성됐다고 주장하였습니다. 이에 대해, 법원은 "가해자가 범행을 계속 부인하면서 최초로 고소장을 접수하고 공소가 제기된 후 시간이 꽤 경과해 유죄판결이 확정됐다. 이와 같은 정황을 고려했을 때 피해자는 형사재판 제1심 판결이 있던 2017년 1월에야 비로소 가해자의 불법행위 요건 사실에 대해 현실적이고 구체적으로 인식했다고 보는 것이 맞고, 따라서 소멸시효가 완성됐다고 볼 수 없다."고 판결하였습니다.

KASAN_가해자가 부인하는 상황에서 성추행, 강제추행 피해자의 민사상 손해배상청구권의 3년 소멸시효 기산점은 불법행위, 고소, 기소일이 아니라 형사재판 1심 판결일로 인정.pdf

링크: COVID-19 Contractual performance – Force Majeure clauses and other options: a global perspective - PRC

1. Does this jurisdiction imply a concept of Force Majeure into commercial contracts, or do the parties need to negotiate the provision?

PRC implies a concept of Force Majeure into commercial contracts. The PRC Contract Law also respects the principle of freedom of contract and it is very common for contracting parties to agree a contractual definition of Force Majeure.

2. If implied, what is the legal basis for this and what is the scope of the implied provision?

Force Majeure is codified in Article 180 of the General Rules of the Civil Law of the PRC and Article 117 of the PRC Contract Law, which define Force Majeure as "the objective circumstances that are unforeseeable, unavoidable and insurmountable".

3. For a contract without a Force Majeure provision, what options does a party have where its ability to perform its obligations has been affected by COVID-19? Is that different for contracts for services and contracts for the provision of goods?

A party may claim Force Majeure under the aforementioned statutory provisions.

4. How are the courts likely to assess whether COVID-19 qualifies as a Force Majeure event?

Although government statements and local court notices are not binding to all cases, they may be persuasive. The following are some examples of recent statements and local court notices that could be considered:

- A spokesperson for the Legislative Affairs Commission of the National People's Congress Standing Committee is reported to have stated on 10 February 2020 that if parties are unable to perform their contractual obligations due to the government measures relating to COVID-19, they should be allowed to claim Force Majeure relief in accordance with the PRC Contract law.

- The First Civil Division of Higher People's Court of Zhejiang Province is also reported to have issued a notice stating that a Force Majeure could be established if: (i) the failure of performance is directly caused by administrative measures taken by the government to prevent the COVID-19 pandemic; or (ii) it is fundamentally impossible for a party to perform its obligation due to the COVID-19 pandemic.

In case Force Majeure cannot be established, the court may consider applying the principal of fairness and the principle of circumstance change if it is apparently unfair for a party to continue performing its obligations, or the contract purpose cannot be realized due to COVID-19.

5. What are the potential effects of exercising Force Majeure rights?

The contractual provision will prevail. Further, there are two possible remedies under PRC Contract Law. A party impacted by a Force Majeure event may be exempted from performance as result of such Force Majeure event, and either party may terminate the contract if the contract's purpose is impossible to perform due to the Force Majeure event.

6. If a party cannot rely on a Force Majeure clause or other legal option, what is the contractual position?

A party may have rights under the statutory Force Majeure provisions as discussed above, if there is no Force Majeure clause in the contract.

In case a party cannot rely on the contractual clause or the statutory provisions (i.e. a Force Majeure cannot be established), a party may seek to obtain a variation of the contract based on the principle of fairness and the principle of circumstance change (a principle under PRC law which is similar to rebus sic stantibus) where it is considered unfair for such party to continue performing its obligation, or the contract purpose cannot be realized due to the COVID-19 pandemic. However, courts are generally more reluctant to apply such principles as compared to Force Majeure relief.

Where Force Majeure cannot be established and the court decides that the principles of fairness and change of circumstance are applicable, then the failure of (or delay in) performing certain obligations under the contract will constitute a contractual breach, unless the contract provides otherwise.

KASAN_중국변호사의 영문버전 포스팅 - 코로나19, COVID-19 사태와 국제계약의 계약불이행 관련 중국법원의 불가항력 Force Majeure 적용 관련 실무적 포인트.pdf

링크: COVID-19 Contractual performance – Force Majeure clauses and other options: a global perspective

국제계약의 불가항력 조항 검토 포인트 - Reviewing a Force Majeure clause

The review of an express Force Majeure provision might include considering the following questions:

- Are we the affected party or the unaffected party?

- Is COVID-19 a type of event that triggers the relevant clause? Obvious possibilities include a "disease", an "epidemic" or a "pandemic". Some clauses include sweeping language such as "any event or circumstance beyond the reasonable control of the affected party" while others are limited to major events such as earthquake, war, explosion, fire and flood. Governmental action is another particularly helpful category for affected providers.

- Is the waiver of obligations limited to failures due to a Force Majeure event or only those that could not have been prevented through reasonable means (such as workaround plans)?

- Must performance be "prevented" (essentially impossible) or is it sufficient for performance to be "delayed" or "hindered" for the clause to excuse contractual obligations?

- What is the impact of the party's own actions in contributing to its inability to perform? For instance, if it has imposed a travelban that has meant it is unable to perform, does that limit its ability to rely on the Force Majeure clause?

- When should notice be given? Should it be when there is an actual impact, or a possible impact? Does giving notice have adverse contractual effects, such as beginning a period for correction and restoration of full performance?

- Is there an obligation to take steps to mitigate the consequences of the event? If so, which party has (or which parties have) that obligation? Are they described in the contract (such as a specific disaster recovery or business continuity plan)?

- Is there an obligation to report to the other party on a continuing basis as to the steps being taken and/or the expected impact of the event?

- Does either party have the right to terminate or delay performance of the contract if the clause has been invoked? If so, after how long?

KASAN_코로나19, COVID-19 사태로 국제계약의 계약불이행 관련 불가항력 Force Majeure 조항 관련 실무적 Check Points, Action TIPS – 외국 로펌의 영문버전 포스팅.pdf

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Force Majeure (FM) Test/Causation

A FM event is an objective event or situation which is (1) unforeseeable (at the time of entering into the contract), (2) unavoidable in terms of occurrence or impact and (3) impossible to overcome.

There must be a causal link between the FM event and the affected party's failure to perform (i.e., the affected party must establish that the FM event must have caused the non-performance). It's not necessarily required that the FM event must be the direct cause immediately resulting in the non-performance. If there are too many steps between the FM event and the non-performance it will be difficult for the affected party to satisfy causation.

Recommended Actions – 실무적 대응방안

If, whether as buyer or supplier, you have entered into commercial contracts that have or may be affected by the outbreak, we recommend the following actions:

• Review each contract carefully, with particular regard to the governing law and FM provisions, including any time bars or other procedural requirements.

• Form a preliminary view on whether any FM provision is "open" or exhaustive in relation to the list of FM events and whether the outbreak and/or resulting government crisis measures are covered/excluded.

• If you may need to invoke a claim, consider your obligation to mitigate the effect on non-performance and what steps you can take. Starting a mindful dialogue with the counterparty may be an important part of the process.

• Consider any potential flow on effects from the invoking of a claim such as termination of the contract.

Aside from your legal position, there are generally going to be several other important matters of concern:

• For a counterparty who receives a FM claim they do not think is valid, there is the issue of enforcement of the contract, particularly if it does not provide for international arbitration.

• There are the reputational risks and potential damage to long-term supply relationships with foreign buyers and suppliers. Even where there is no legal basis for FM relief, parties who receive FM claims may wish to be flexible about amending or restructuring (e.g. by postponing deliveries) the contract to accommodate the affected party.

• Declaring FM or receiving a FM claim may impact on insurance arrangements.

• Buyers who are part of a chain of supply contracts may themselves need to declare FM in response to a supplier's declaration in order to avoid being in breach. Each contract in the chain may of course be on different terms or subject to entirely different governing laws and this can create substantial challenges for the buyer, especially where their downstream contract has less favourable (or no) FM provisions. There may also be separate time bars or other procedural requirements as above.

Examples of steps companies might actively consider taking now (and seek to ensure that counterparties are taking) include: securing alternate supply streams in the event a supplier’s operations are impacted; planning for how employees can continue working remotely, or how functions can be transferred to other locations, in the event of quarantines and business closures; and mitigating the impact of restricted travel both around the globe and within countries. Even if such steps are not successful in avoiding the need to declare a force majeure, a company’s attempt to mitigate its risk in advance will be highly relevant to a court’s determination of whether reasonable steps were taken to continue to satisfy contractual obligations, and whether performance was truly impossible. Affirmative measures to help ensure a company is prepared for the possibility of business interruption resulting from COVID-19 include a careful review of insurance policies that may cover such an event.

KASAN_코로나19, COVID-19 사태로 계약불이행 관련 불가항력 Force Majeure 적용 여부, 국제계약의 실무적 대응방안, Recommended Actions – 외국변호사의 영문버전 포스팅 소개.pdf

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의료기기 신고허가 대상은 아니지만 의료기기 관련 제품의 판매계약서 샘플입니다. 피부관리기기로 의료기기 판매계약과는 여러 구별 포인트가 있습니다. 알러간에 인수된 미국 회사에서 사용한 독점 판매계약서를 참고로 첨부합니다.

샘플 계약서는 언제나 통용될 수 있는 것이 아니지만, 실무자에게 유용한 참고자료가 될 것입니다. 영문계약서를 참고로 첨부합니다.

첨부: 의료기기 아닌 피부관리기기 독점판매계약_영문계약서 샘플

KASAN_비의료기기, 피부관리 기기 판매계약, 총판계약, Distribution Agreement - 영문계약서 샘플 - [자문작성신속저비용].pdf

의료기기주변_피부관리기기_distribution agreement_sample.pdf

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