Exchange Contracts Research Articles

북한 부동산거래법의 변모과정과 향후 추이*

This paper examines the change of North Korea’s real estate contract laws, predicts their future transition, and considers the possibility and limitation of mutual approach in real estate contract laws between South and North Koreas. North Korea used to not use the legal term of ‘real estate’ previously, but set forth ‘real estate’ and ‘real estate contracts’ as legal terms when instituting the 1990 Civil Act (Article 94). As opposed to reality, however, the Civil Act (Articles 148 and 179) and Real Estate Control Act (Article 28(6) and Article 30) of North Korea still prohibit the contracts of real estate, including sale and lease. The Civil Act (Article 94) of North Korea does not specifiy the specific contents of ‘real estate contracts,’ but they may be understood as claim contracts by the media of real estate and agreements on real right. On the other hand, North Korea received the legal system of China, and allows real estate contracts such as sale, exchange, lease, and mortgage in special zones and to foreigners in accordance with the Land Lease Act, RERKIZ (Real Estate Regulations for Kaesong Industrial Zone), and real estate regulations. To predict the future transition of North Korea’s real estate contract laws, the civil act shows the possibility of restrictively granting the loan for use of housing, and it is forecast that sale and the contract of exchange will be gradually accepted. In addition, it is expected that RERKIZ will be revitalized according to the reopening of South-North economic cooperation and be enhanced as a real estate contract law in special zones, and that the current system of China’s real estate contract laws will possibly be received with respect to land usufruct.

Pelaksanaan Hak Kekayaan Intelektual Sebagai Objek Wakaf

This study aims to determine the Islamic view of IPR as a waqf object, and procedures for implementing waqf with IPR objects. This study uses a normative juridical method with an approach to the Law and conceptual approach. The results showed that IPR was seen as one of the wealth rights (Huquq Maliyyah) in the view of Islam that received legal protection as other assets, so that IPR could be used as an object of waqf (al-mauqud 'alaih) both exchange contracts, commercial (Mu'awadhah ) and non-commercial contracts (tabarru'at). IPR as a waqf object is permitted by Islamic law as long as it fulfills the requirements as an object of waqf, as well as positive Indonesian law, this is reinforced by Law No. 41 of 2004 concerning Endowments; Government Regulation No. 42 of 2006; The decision of the Indonesian Ulema Council (MUI) No. 1 MUNAS / VII / 5/2005, allows IPR as an object of waqf. The HKI waqf procedure, in general, is not much different from the waqf procedure with objects of immovable objects such as land or other immovable objects but the difference is that there must be authentic evidence from the Directorate General of Islamic Education and the establishment of court states that the waqf object is not in dispute. Before the waqf pledge was made the Acting Actor of the Pledge of Endowments (PPAIW) consulted the Ministry of Religion in advance to get recommendations.

Social, Sexual, and Other Contracts in Eighteenth-Century Novels

Abstract This essay highlights the role that Enlightenment conjectural histories and liberal concepts of contractual exchange play in Nancy Armstrong’s revisionist description of the rise of the novel. It urges scholars of the novel to follow the example of Desire and Domestic Fiction and remember more often the eighteenth-century narrative experiments that unfolded when liberalism was still new. Eliza Haywood’s novel of amorous (and sapphic) intrigue The British Recluse (1722) suggests one reason to do that remembering. To see how Haywood uses the figure of the contract—very differently from Samuel Richardson and Jane Austen—is to better apprehend how in the early eighteenth century the marriage plot’s ideal of heterosexual complementarity had not yet become the only game in town.

Fairness and the Law of Contract

Whenever a court enforces a bargain, it does so against someone who regrets having made it. Why should he be bound? Our thesis is that, in principle, a contract of exchange should be enforced when it is economically fair and voluntary. It is economically fair when the performance that each party is to make is equivalent in economic value to the one that he is to receive. It is voluntary when each party receives something that he deems to be of greater personal value to him than what he gives in return. If not, he should only be bound when it would be economically unfair to the other party to release him. Our theory is a modern version of Aristotle’s description of contract as voluntary commutative justice. We show how that idea can be made precise using the insights of modern economics. We show how it can explain the principal legal doctrines that govern when a contract of exchange is enforced: unconscionability, liquidated damages, consideration, impracticability, mistake and frustration of purpose.

The Debt-Equity Ratio Choice: Risk Sharing Instruments, A Viable Alternative

Evidence has been documented in the literature that the interest based debt financing system is experiencing continuous discomfort. The outcome of the 2008 global financial crisis has further create fresh vigor to the assertion. Also, these authors have submitted that debt and leveraging are the two major causes of financial instability in the present system. This paper claims that the existence of the interest-based debt regime is becoming less acceptable, as excessive debt can affect the whole economic system, even in a developed country like United States. From an economic viewpoint, therefore, by banning interest rate-based contracts and decreeing exchange contracts, Islamic financeinspires risk sharing and prohibits risk transfer, risk shedding, and risk shifting. The paper proposes risk sharing based Islamic financing as a suitable alternative to the interest based debt financing. This study concludes that risk-sharing finance has several benefits, especially its potential to minimize, if not circumvent, the debt prompted financial crises that have beset the world..Keywords : Debt-Equity Ratio; Risk Sharing Instruments; Islamic Finance

The Legitimacy of Civil Freedom

Force and Freedom by Arthur Ripstein provides a comprehensive account of the modern legal system on a Kantian basis, reaching from private law to public international law. The legal system is presented as a coherent whole, solely based on the idea of equal freedom. Ripstein’s fundamental claim is twofold: first, the Kantian foundation is hermeneutically superior to alternative approaches to understanding the normative structure of the legal system; second, the modern legal system, due to its foundation in equal freedom, resides in reason and is thus normatively superior to alternative ideas of social ordering. Such a great work is typically subject to a wide range of objections. Some of them are raised in contributions to Freedom and Force, edited by Sari Kisilevsky and Martin Stone. This review essay attempts to explain Ripstein’s basic line of thought in Force and Freedom and to defend his account against some mistaken, but nevertheless illuminating, arguments from his critics in Freedom and Force. It then raises two further concerns, one internal, regarding the idea of justice in contractual exchange, and one external, regarding the cogency of a Kantian legitimation for the modern welfare state.

METHODS FOR PRICE DETERMINATION (JUSTIFICATION) AT ECONOMIC-GEOLOGICAL EVALUATION OF COAL DEPOSITS

The purpose of research is systematization and analysis of methods of price determining for geological and economic assessment of coal deposits in domestic and international practice. Price indicators and income from sale of coal affect significantly reserves value, profitability of their development, and determine industrial significance of reserves. In domestic practice commodity exchanges, contractual, regulated, world and transfer prices are used. In international practice coal prices are formed at the result of futures, spot or stock exchange contracts. Now international coal trade realizes in the framework of futures contracts and spot transactions. In recent years, short-term contracts prevail, rarely it’s used medium-term contracts. A sequence of coal pricing for geological and economic assessment has been determined, which is the following: classification of coal by grades and classes in accordance with current standards; statistical analysis of prices by grades and classes, coal enrichment products; determination of a system of discounts/surcharges to the price of each class depending on coal quality; correction of actual producer prices for assessment reserves. The values of surcharges or discounts for individual indicators of coal quality are determined. The sensitivity analysis of reserves value and profitability from changes in selling coal prices has been carried out. The determination of the coal price or enrichment products requires a detailed justification depending on the stage of geological and feasibility study of reserves. For detailed assessment of explored or exploited deposits it is reasonable to use actual prices of coal sales for the previous period and contract prices for future periods in the presence of medium and long-term contracts. For preliminary geological and economic assessment, it is possible to use the price of the analogue deposit, which is developed, or wholesale coal prices with correction by quality.

Legal regime of electronic documents and electronic signatures: international and European experience

The research is based on current interna­tional legislation, legislation of EU and legislation of foreign countries. On the grounds of this documentary basis the notion of e-commerce is analyzed, legal relationships related to this notion, the use of electronic documents and electronic signatures is discussed.The internationalization of international economic relations and globalization have necessitated the international unification and harmonization of legislation in the field of electronic document circulation, the purpose of which is to exchange infor­mation between participants in relations located in different states. In this regard, it is impossible to ensure the effective legal regulation of these legal relations within one country without taking into account the existing approaches in international practice and foreign legislation. The basis for the harmonization of rules on electronic documents and their use in contractual relations are the reasons of an economic and legal nature. One of these factors was the emergence and development of new means of communication, with the result that economic relations went beyond the frame­work of individual states and ceased to be tied to a specific national territory.Among the reasons specific to this area, it should be noted the emergence of new ways of certifying authentic documents and new forms of documents, through the exchange of which it is possible to conclude, execute contracts, perform other legally significant for civil and international circulation of actions. The advantages of using new technical tools have necessitated the consolidation of legal requirements for such use. However, the publication of special acts at the domestic level will not contribute to the development of international trade, since the right of each state has its own characteristics, due to the centuries-old traditions and modern interests of the state in various fields.The adoption of the EU Directives and their implementation in the national legis­lation of the EU member states led to the fact that if the electronic document circula­tion was initially widely used in the USA, then later it became the most popular in the countries of Western Europe. Thus, it can be stated that in international law, sig­nificant results have been achieved in the unification of the norms on electronic docu­ment circulation. Uniformity in the regulation of electronic information exchange is achieved not only through the unification of standards, but also through private unifi­cation by the parties to information exchange contracts using electronic means.Strengthening the mutual influence of national economies and legal systems requires the improvement of the norms of national legislation in this area so that they meet inter­national standards. The existing differences in national legal regimes governing the elec­tronic exchange of information may, to a large extent, limit the ability of commercial en­terprises to enter international markets. Under these conditions, the importance of using foreign experience to improve the national legislation increases. Based on international experience in this area, it is necessary to build a legal regulation of electronic document circulation, which would regulate those relations that cannot be settled by the partici­pants of legal relations themselves. At the same time, it is necessary to take into account the principles of technological neutrality and functional equivalence.

Substantive Unfairness as Unconscionable

Contrary to the conventional view that the doctrine of unconscionability requires procedural defects and is based on bargaining inequality, this paper argues that, in principle, substantive unconscionability alone shall be sufficient to constitute unconscionability and so vitiate a contract. It is also my contention that Aristotelian idea of contract of exchange as an act of voluntary commutative justice explains the two sources of unfairness. They are not understood by contemporary legal scholarship, namely, economic unfairness and involuntariness. Economic unfairness prevents gross disparity, which alone triggers unconscionability; it has been observed that when a transaction is truly stupid or one-sided, courts will set aside the contract as unconscionable. When a contract violates the autonomy of a party by hiding offensive or oppressive terms in a boilerplate, relief is given by both the Second Restatement of Contracts and European Directive. Yet, there is no doctrinal basis in our theoretical framework that justifies either one of the two reliefs. We stand a better chance of having a coherent doctrine of unconscionability by understanding what unfairness means and seeing contract of exchange as an act of voluntary commutative justice as in Aristotelian tradition.

Comparing Incentive Contract Desirability within an Integrated Risk Setting

In this study, we experimentally investigate how performance risk and relational risk affect a principal’s willingness to offer gift, bonus, or penalty contracts and the subsequent motivational effect that these three contracts have on agents. Prior literature has not directly compared performance-contingent contracts to gift contracts, and extrapolation from existing empirical data is difficult because the literature has typically examined each in settings focused only on the mechanism through which each contract acts (i.e., interactive settings for gift exchange and settings with stochastic production and unobservable effort for performance-contingent contracts). We combine features of both settings and construct a willingness-to-pay (WTP) measure indicative of the principal’s propensity to offer a contract. Comparing the WTPs for the contracts, we find that gift exchange contracts are less attractive to principals than performance-contingent contracts. More importantly, we demonstrate that performance-contingent contracts evoke reciprocity concerns, suggesting that they function as both incentive compatible instruments, consistent with agency theory, and as behavioral instruments, consistent with models of gift exchange.

Employer-Employee Relationships: New Approaches to LMX and Psychological Contracts Research

Employer-employee relationships are foundational to organizational life. These relationships are the focal point in the domains of leader-member exchange and psychological contracts with findings s...

Reconstruire le temple des grâces : Le don au fondement du soin

The concept of “care” has recently emerged to expand the idea of rationality in economics, introducing insights that have traditionally been restricted to the so-called third sector (non-profit), and, as a result, questioning mainstream economics. This article is based on the thesis that the development and functionality of the market and the state are a result of something previous, i.e., the presence of the gift in social relations. The idea of the gift is related with charis, which is at the root of care and is in addition closely related to the religious concepts of grace and charity. In order to show that this notion was present in the Western classical tradition—from Aristotle to Scholastic thought—this article traces the foundation and evolution of money through the lens of social interaction in terms of friendship and fraternity. Finally, it suggests that a social order based exclusively on contractual exchange relations is a consequence of an interpretation of the gift as a pure and generous gesture without the moral obligation of reciprocity. In opposition to that thesis, critics of modern economics, including feminist and Catholic thinkers, come together to defend the superiority of gift over contract, that is to say, of distributive over commutative justice.

Trust and disclosure in european contract law

The paper analyses the reasons for a correct formation of the exchange contract in a market economy, in order to safeguard its operation in a competitive sense. In particular, it highlights the importance of protecting the trust of the contracting parties with respect to reciprocal disclosure obligations that prevent the conclusion of asymmetric contracts, which by definition are unfair and inefficient.

Comparative Study of Bullish Option Payoffs in USD-INR Market

Empirical literature lacks in quantum of studies on option payoffs especially in context of Indian foreign exchange contracts. This study fills this gap and tried to assess the bullish option payoffs with underlying USD-INR contract. The study was done for a period of 68 months from October 2010 to June 2016. Three bullish option strategies namely long call, short put and covered call were applied and their payoffs were assessed for different moneyness. In addition strategies were also compared using multiple comparison tests. Although no statistically significant differences were recorded when compared for different moneyness in the respective strategy, but in comparison between the strategies, long call was found to be a outperformer and the result is statistically significant.

It is not mine. Surrogacy between Natural Body and Artificial Body

Drawing on Jean Baudrillard’s approach and his process of simulation, which is a useful key for interpreting and analysing the natural body-artificial body dichotomy, this article aims to raise questions about the repercussions that the new culture of the body and the practices associated with the medicalization of maternity have on the construction of personal and social identity. The debate encompasses issues in the realm of bioethics, the presence or absence of human rights, contractual exchange, the processes of commodification of the body, women and pregnancy, and processes that manipulate human life. The scope of the observations thus extends to subjects such as bioethics, body ownership and the manipulation of life, to the point of questioning the construction of gender identity and even the very concept of mother. The objective of this study is to render the complexity of the issue of surrogacy and highlight the resulting theoretical challenges faced by the social sciences. It is still essentially exploratory in nature and is intended as a starting point for the development of this research topic, raising certain questions in an attempt to provide the sociological debate with new theoretical and empirical challenges.

The provisioning of collective goods by MNEs in emerging markets

PurposeThis paper aims to determine the essential “collective goods” which a foreign multinational enterprise (MNE) must have before production can start in a remote area of an emerging economy, and to consider the alternative governance modes available to procure or create these goods.Design/methodology/approachThis purpose is examined conceptually and theoretically. First, the concept of “collective goods” is presented, followed by a consideration of the traditional “buy, ally or make” contractual approaches available to obtain goods and services. These approaches are repositioned in the context of an “emerging economy” so that alternative “ordering systems” as well as “non-contractual” means of obtaining things have to be considered in the context of internalization and reciprocity theories.FindingsIt is difficult to obtain collective goods in remote areas of emerging economies where private ordering prevails and even succeeds but at high transaction costs and with substantial government intervention. However, the use of non-contractual modes of exchange such as reciprocity is available to facilitate exchanges between market MNEs and nonmarket state offices and civil-society associations such as non-governmental organizations with which collaboration is necessary but which cannot be acquired or controlled by MNEs. However, market firms can use philanthropy and lobbying to obtain the help of these nonmarket actors who know how to operate under private and state-ordering systems.Research limitations/implicationsTheoretical implications: Internalization theory explains why MNEs are able to obtain collective goods by providing them “in-house”, while reciprocity theory exemplifies how non-contractual modes of exchange can substitute for the traditional but contractual “buy, ally and/or make”.Practical implicationsManagerial implications: In terms of the organizational structure of the subsidiary of an MNE operating in an emerging economy, it appears that the line functions of procurement, engineering and production may rely more on contractual exchanges with foreign suppliers, while the staff functions of public affairs, government relations and human resources may be more adept at using reciprocal exchange with local suppliers.Originality/valueThe provisioning of the collective goods when a firm builds its facilities in a remote and underdeveloped part of an emerging economy has hardly received any research attention nor have the non-contractual ways – such as reciprocity – available in the context of private ordering to obtain these goods.

Regulacja prawna timesharingu w wybranych państwach europejskich

Timeshare is a part of the process of satisfying consumer needs through the use of material goods and services. Timeshare means touristic, cyclic use of things in a concrete period of time over many years. Consumer acquires the timeshare right under a contract of a consumer character. This right is regulated at EU level and is a supranational legal relationship, when it usually involves entities from different countries. Timesharing is a legal institution which is regulated by the Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts. The purpose of the Directive according to the article 1.1 is to contribute to the proper functioning of the internal market and to achieve a high level of consumer protection, by approximating the laws, regulations and administrative provisions of the Member States in respect of certain aspects of the marketing, sale and resale of timeshares contracts. Directive is without prejudice to national legislation which: provides for general contract law remedies, relates to the registration of immovable or movable property and conveyance of immovable property, relates to conditions of establishment or authorisation regimes or licensing requirements, and relates to the determination of the legal nature of the rights which are the subject of the contracts covered by this Directive. Under the definition set out in the Directive „timeshare contract” means a contract of a duration of more than one year under which a consumer, for consideration, acquires the right to use one or more overnight accommodation for more than one period of occupation. While the Directive does not determine the legal nature of the rights which are the subject of the timeshare contracts, in the practise of Member States, there are a lot of different legal timesharing structures like inter partes or in rem ones, trust, etc. Such situation does not help in consumer protection. The timeshare Directive was transposed to the legal systems of the Members States without significant changes. As the domestic legislation after the Directive does not determine the character of the timeshare right, the constructions of it are created with some specification of a common law system, german one as well as a roman culture. In England and in Spain the most popular timeshare construction used in practice is club-trustee, while in France there is a société d’attribution and Dauerwohnrecht in Germany. Timeshare is prepared for holiday use and is associated with tourist services. It represents a preferred alternative to purchase things as a legal owner, because only performs the function of consumption and aims to provide pleasure to the consumer lessee. The law is carried out by many consumers, although at a specific time they are entitled to exclusive use of one of them. Timeshare usage allows for real use of things without exercising the duties of taking care of thing, pay in respect of its ownership taxes, or making a repair. That is why it became such a success in tourism and in the same time while not functioning in the similar structure it is not clear institution for a potential consumer.

"Yo paresciera cobdicioso mercader": Aristocratic Economics in El Abencerraje

Set during the fifteenth-century Christian Reconquest of the Iberian Peninsula, the Moorish novel El Abencerraje articulates a meticulously stratified system of contractual exchanges in which the aristocracy's symbolic economy of honor functions in counterpoint to the warrior economy of kidnapping and ransom, the erotic economy of love, and the mercantile economy of the commercial class. These economic divisions transect both Christian and Muslim spaces, transcending ethnic and religious distinctions and reinforcing a shared aristocratic identity that supplants financial greed and violence along a military border. While this hierarchy of value exists in all three surviving iterations of El Abencerraje , it is particularly developed in the version of the text included in Antonio de Villegas's Inventario , a miscellany published in Medina del Campo in 1565. Medina del Campo was then the site of the most important merchant fair in Castile and the hub of financial activity in the Peninsula, at a time when increasingly globalized commercial and currency exchange markets provided unprecedented opportunities of enrichment to those merchants in a position to profitably exploit them. This economic context, therefore, may have been determinative of some of the distinctive aspects of the Inventario version of the text, which contrasts the financial disinterestedness of its noble Christian protagonist, Rodrigo de Narvaez, with the figure of the greedy merchant. The Inventario variant of El Abencerraje is therefore less a plea for interfaith tolerance than a didactic instrument for inculcating aristocratic values within a socially mobile merchant class with pretensions to nobility.

‘Towards’ a Private Law Embedded in Social Theory: Eine Skizze

Abstract: The article starts by pointing out that the organizational contract, characterized mainly by its long-term duration and its arrangement in networks, is just as important in practice as are simple exchange contracts. Nonetheless, in contract law doctrinal thinking, legislation, and also comparative law studies, it has received much less attention. In the present essay, the question is asked whether this state of affairs may not be due to the fact, at least in part, that core developments in other social sciences – in this case particularly in institutional economics and in the new economic sociology – have not properly been taken into account. In the first main part of the essay, it is indeed argued that the concept recognized in institutional economics of a relation-specific investment (O. Williamson) could well have been the basis for developing core needs for protection and a regulation satisfying these needs. The second main part of the essay explains that the concept of ongoing reciprocity described in the new economic sociology (W. Powell) as the core characteristic and key to the success of networks can be used as a solid basis for developing legal rules and duties. Thus, the organizational contract does not only seem to be “underrepresented” in legal discourse and legislation as compared with the simple exchange contract. It also casts light on how much law and legal scholarship can benefit from the insights gathered in other social sciences.

Off-Balance Sheet Exposure – Performance Analysis And Risk Measurement Of Indian Banks

Banking Sector has under gone enormous changes over the decades initially from ownership to government ownership and open to competition from private and foreign banks after the liberalization of the economy in 1991. Under the regulated economic system, banks used to enjoy complete protection from the government and insulated totally from external shocks. The financial sector reforms initiated by the Government brought unforeseen changes in the general functioning of the banks; as a result banks are compelled to extend their business activities which they were distancing over the years. The exposure to off banking activities to like foreign exchange contracts has led the banks to expose to greater risks but with incremental revenues in the form of other incomes. It is necessary banks to manage the risk through the exposure to various off balance sheet activities. Key words; Government ownership; Liberalisation; regulated economy; off-balance sheet activity; Open Competition; Incremental Revenues ; Risk Exposure