• The Korean Journal of Air & Space Law and Policy
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• v.29 no.2
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• pp.3-54
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• 2014

The Republic of Korea enacted the Air Transport Act in Commercial Law which was entered into force in November, 2011. The Air Transport Act in Korean Commercial Law was established to regulate domestic carriage by air and damages to the third party which occur within the territorial area caused by aircraft operations. There are some problems to be reformed in the Provisions of Korean Commercial Law for the aircraft operator's liability of compensation for damages to the third party caused by aircraft operation as follows. First, the aircraft operator's liability of compensation for damages needs to be improved because it is too low to compensate adequately to the third party damaged owing to the aircraft operation. Therefore, the standard of classifying per aircraft weight is required to be detailed from the current 4-tier into 10-tier and the total limited amount of liability is also in need of being increased to the maximum 7-hundred-million SDR. In addition, the limited amount of liability to the personal damage is necessary to be risen from the present 125,000 SDR to 625,000 SDR according to the recent rate of prices increase. This is the most desirable way to improve the current provisions given the ordinary insurance coverage per one aircraft accident and various specifications of recent aircraft in order to compensate the damaged appropriately. Second, the aircraft operator shall be liable without fault to damages caused by terrorism such as hijacking, attacking an aircraft and utilizing it as means of attack like the 9 11 disaster according to the present Air Transport Act in Korean Commercial Law. Some argue that it is too harsh to aircraft operators and irrational, but given they have also some legal duties of preventing terrorism and in respect of helping the third party damaged, it does not look too harsh or irrational. However, it should be amended into exempting aircraft operator's liability when the terrorism using of an aircraft by well-organized terrorists group happens like 9 11 disaster in view of balancing the interest between the aircraft operator and the third party damaged. Third, considering the large scale of the damage caused by the aircraft operation usually aircraft accident, it is likely that many people damaged can be faced with a financial crisis, and the provision of advance payment for air carrier's liability of compensation also needs to be applied to the case of aircraft operator's liability. Fourth, the aircraft operator now shall be liable to the damages which occur in land or water except air according to the current Air Transport Act of Korean Commercial Law. However, because the damages related to the aircraft operation in air caused by another aircraft operation are not different from those in land or water. Therefore, the term of 'on the surface' should be eliminated in the term of 'third parties on the surface' in order to make the damages by the aircraft operation in air caused by another aircraft operation compensable by Air Transport Act of Korean Commercial Law. It is desired that the Air Transport Act in Commercial Law including the clauses related to the aircraft operator's liability of compensation for damages to the third party be developed continually through the resolutions about its problems mentioned above for compensating the third party damaged appropriately and balancing the interest between the damaged and the aircraft operator.

• The Korean Journal of Air & Space Law and Policy
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• v.19 no.1
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• pp.37-56
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• 2004

As part of the ongoing global process of airlines forming strategic alliances, Korean Air has become a member of the SkyTeam Alliance, while Asiana has joined the Star Alliance. However, as something akin to the Anti-Trust Immunity(ATI) initiative has not been ratified domestically, these two airlines have seen their roles within these strategic alliances significantly reduced. In keeping with its domestic airline liberalization policy the U.S. government has instituted a mechanism through which foreign airlines that join such strategic alliances with their American counterparts can be exempt from the U.S. antimonopoly law. As a result, U.S. airlines have been able to forge wide ranging cooperative relations with foreign airlines, and thus increased their competitiveness within the air transport industry. This study analyzes the applicability of this Anti-Trust Immunity initiative to the domestic environment.

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.1
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• pp.181-206
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• 2015

Due to the increased leisure time, national income levels, and increasing the desire for new experience, interest causes increasing demand for recent aviation leisure sport. This leads to the need for a competitive foundation of the expansion of aviation leisure sports market potential. In 2014, the MOLIT(Ministry of Land, Infrastructure and Transport) created definition of sport and recreational aviation industry in the Aviation Act. The most significant change in Aviation Act related to sport and recreational aviation, it allows easier access for those wishing to participate in the joy of flight and also creating a sport and recreational aviation business market expansion. Therefore, in this paper, by analyzing the trend of foreign policy trends and domestic policies that sport and recreational aviation has been enabled, it is trying to present the activation policy proposals of sport and recreational aviation that is suitable for Korea.

• The Korean Journal of Air & Space Law and Policy
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• v.29 no.1
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• pp.67-95
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• 2014

Some Contracting States of the Chicago Convention issue FAOC(Foreign Air Operator Certificate) and conduct various safety assessments for the safety of the foreign operators which operate to their state. These FAOC and safety audits on the foreign operators are being expanded to other parts of the world. While this trend is the strengthening measure of aviation safety resulting in the reduction of aircraft accident. FAOC also burdens the other contracting States to the Chicago Convention due to additional requirements and late permission. EASA(European Aviation Safety Agency) is a body governed by European Basic Regulation. EASA was set up in 2003 and conduct specific regulatory and executive tasks in the field of civil aviation safety and environmental protection. EASA's mission is to promote the highest common standards of safety and environmental protection in civil aviation. The task of the EASA has been expanded from airworthiness to air operations and currently includes the rulemaking and standardization of airworthiness, air crew, air operations, TCO, ATM/ANS safety oversight, aerodromes, etc. According to Implementing Rule, Commission Regulation(EU) No 452/2014, EASA has the mandate to issue safety authorizations to commercial air carriers from outside the EU as from 26 May 2014. Third country operators (TCO) flying to any of the 28 EU Member States and/or to 4 EFTA States (Iceland, Norway, Liechtenstein, Switzerland) must apply to EASA for a so called TCO authorization. EASA will only take over the safety-related part of foreign operator assessment. Operating permits will continue to be issued by the national authorities. A 30-month transition period ensures smooth implementation without interrupting international air operations of foreign air carriers to the EU/EASA. Operators who are currently flying to Europe can continue to do so, but must submit an application for a TCO authorization before 26 November 2014. After the transition period, which lasts until 26 November 2016, a valid TCO authorization will be a mandatory prerequisite, in the absence of which an operating permit cannot be issued by a Member State. The European TCO authorization regime does not differentiate between scheduled and non-scheduled commercial air transport operations in principle. All TCO with commercial air transport need to apply for a TCO authorization. Operators with a potential need of operating to the EU at some time in the near future are advised to apply for a TCO authorization in due course, even when the date of operations is unknown. For all the issue mentioned above, I have studied the function of EASA and EU Regulation including TCO Implementing Rule newly introduced, and suggested some proposals. I hope that this paper is 1) to help preparation of TCO authorization, 2) to help understanding about the international issue, 3) to help the improvement of korean aviation regulations and government organizations, 4) to help compliance with international standards and to contribute to the promotion of aviation safety, in addition.

• The Korean Journal of Air & Space Law and Policy
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• v.27 no.2
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• pp.29-65
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• 2012

Der neue strukturelle Ansatz der Kommbination eines Rahmen$\ddot{u}$bereinkommens und eines ausr$\ddot{u}$stungsspezifischen Sonderprotokolls bedingt einen neuen organisatorischen Anstz f$\ddot{u}$r die Zusammenarbeit zwischen internationalen Organisationen bei der Schaffung von internationalem Einheitsprivatrecht. So haben hier zwei internationale Organisationen gemeinsam die Verantwortung f$\ddot{u}$r einmultilaterales $\ddot{U}$bereinkommen $\ddot{u}$bernommen: auf der einen Seite UNIDROIT als die internationale Organisation, die generell f$\ddot{u}$r die Vereinheitlichung des Privatrechts kompetent ist; auf der anderen Seite ICAO als die f$\ddot{u}$r die private Luftfahrt zust$\ddot{a}$ndige internationale Organisation. Dieses neue, f$\ddot{u}$r die Luftfahrzeugausr$\ddot{u}$stung praktizierte organisatorische Modell eines joint venture zweier internationaler Organisation bei der Einheitsrechtsetzung, namlich die Betreuung eines allgemeinen privatrechtsvereinheitlichenden Rahmens$\ddot{u}$bereinkommens durch UNIDROIT und die Wahrnehmung der sektorspezifischen Belange in einem ausr$\ddot{u}$stungsspesifischen Sonderprotokoll durch die jeweils zust$\ddot{a}$ndige internationale Spezialorganisation, hat bereits f$\ddot{u}$r die Sektoren der Eisenbahn- und Weltraumausrustung Schule gemacht. Das in Kapstadt beschlossene v$\ddot{o}$lkervertragliche Regelungswerk hat erstmals ein einheitsrechtliches - grunds$\ddot{a}$atzlich weltweite Geltung anstrebendes - Sicherungsrecht geschafen. Dies kann f$\ddot{u}$r die Sachenrechtsintergration einen $\ddot{a}$hnlichen Durchbruch bedeuten, wis das Wiener UN-kaufrechts$\ddot{u}$bereinkommen von 1980 f$\ddot{u}$r das Schuldvertragsrecht. Voraussetzung daf$\ddot{u}$r ist allerdings die juristische Qualit$\ddot{a}$t und Praxisgerechtigkeit des Regelungswerkes und - insbesondere - das Funktionieren des Registersystems. Von wesentlicher Bedeutung f$\ddot{u}$r den Erfolg des $\ddot{U}$bereinkkommens wird auchsein, ob es Rechtssicherheit zu gew$\ddot{a}$hrleisten vermag.

• The Korean Journal of Air & Space Law and Policy
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• v.28 no.2
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• pp.63-96
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• 2013

Recently, U.S. Department of Transportation (DOT) expanded the "Enhancing Airline Passenger Protections" on August 23, 2011 and October 24, 2011. The Rule regulates tarmac delays, denied boarding compensation, customer service plans, and fare advertising. The adopted rule is to protect passengers by improving passenger service requirements on U.S. national or domestic carriers and foreign air carriers as well. The major issues are as follows: First, regarding to so called Tarmac Delay, carriers must establish a Tarmac Delay Contingency Plan setting forth the number of hours the carrier will permit an aircraft to remain on the tarmac at U.S. airports before allowing passengers to deplane. Carriers also must provide passengers with food and water in the event the aircraft remains on the tarmac for two or more hours and must provide operable lavatories and medical attention while the aircraft remains on the tarmac, irrespective of the length of the delay. Carriers also must create and retain records regarding tarmac delays lasting more than three hours. Also they need to update passengers every 30 minutes during a tarmac delay of the status of the flight and the reason for the delay, allow passengers to deplane if the aircraft is at the gate or another disembarkation area with the door open. Second, carriers now must adopt a "Customer Service Plan" that addresses offering customers the lowest fares available, notifying customers about delays, cancellations, and diversions; timely delivery of baggage; accommodating passengers' needs during tarmac delays and in "bumping cases"; and ensuring quality customer service. Third, the new regulations also increase minimum denied boarding compensation limits to $650 / $1,300 or 200% / 400% of the fare, whichever is less. Last, the DOT also has modified its policies related to enforcement of Rules pertaining to full fare advertising. The Rule states that the advertised price for air transportation must be the entire price to be paid by the customer. Similarly, Korea revised the passenger protection clauses within Aviation Act. However, it seems to be required to include various more issues such as Tarmac Delay, oversales of air tickets, involuntary denied boarding passengers, advertisements, etc.

• The Korean Journal of Air & Space Law and Policy
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• v.32 no.1
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• pp.225-285
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• 2017

In regard to the regulations related to the RPA(Remotely Piloted Aircraft), which is sometimes called in other countries as UA(Unmanned Aircraft), ICAO stipulates the regulations in the 'RPAS manual (2015)' in detail based on the 'Chicago Convention' in 1944, and enacts provisions for the Rules of UAS or RPAS. Other contries stipulates them such as the Federal Airline Rules (14 CFR), Public Law (112-95) in the United States, the Air Transport Act, Air Transport Order, Air Transport Authorization Order (through revision in "Regulations to operating Rules on unmanned aerial System") based on EASA Regulation (EC) No.216/2008 in the case of unmanned aircaft under 150kg in Germany, and Civil Aviation Act (CAA 1998), Civil Aviation Act 101 (CASR Part 101) in Australia. Commonly, these laws exclude the model aircraft for leisure purpose and require pilots on the ground, not onboard aricraft, capable of controlling RPA. The laws also require that all managements necessary to operate RPA and pilots safely and efficiently under the structure of the unmanned aircraft system within the scope of the regulations. Each country classifies the RPA as an aircraft less than 25kg. Australia and Germany further break down the RPA at a lower weight. ICAO stipulates all general aviation operations, including commercial operation, in accordance with Annex 6 of the Chicago Convention, and it also applies to RPAs operations. However, passenger transportation using RPAs is excluded. If the operational scope of the RPAs includes the airspace of another country, the special permission of the relevant country shall be required 7 days before the flight date with detail flight plan submitted. In accordance with Federal Aviation Regulation 107 in the United States, a small non-leisure RPA may be operated within line-of-sight of a responsible navigator or observer during the day in the speed range up to 161 km/hr (87 knots) and to the height up to 122 m (400 ft) from surface or water. RPA must yield flight path to other aircraft, and is prohibited to load dangerous materials or to operate more than two RPAs at the same time. In Germany, the regulations on UAS except for leisure and sports provide duty to avoidance of airborne collisions and other provisions related to ground safety and individual privacy. Although commercial UAS of 5 kg or less can be freely operated without approval by relaxing the existing regulatory requirements, all the UAS regardless of the weight must be operated below an altitude of 100 meters with continuous monitoring and pilot control. Australia was the first country to regulate unmanned aircraft in 2001, and its regulations have impacts on the unmanned aircraft laws of ICAO, FAA, and EASA. In order to improve the utiliity of unmanned aircraft which is considered to be low risk, the regulation conditions were relaxed through the revision in 2016 by adding the concept "Excluded RPA". In the case of excluded RPA, it can be operated without special permission even for commercial purpose. Furthermore, disscussions on a new standard manual is being conducted for further flexibility of the current regulations.

• The Korean Journal of Air & Space Law and Policy
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• v.34 no.1
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• pp.3-38
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• 2019

In 1984, Congress enacted a new measure of administrative sanctions which is a civil money penalty program for violations of Aviation Act and its implementing regulations. This civil money penalty system has been in operations in lieu of suspending or revoking certificates issued by Korean government, Ministry of Land, Infrastructure, and Transport. According to the rules of Aviation Business Act or Aviation Safety Act, where the Minister of Land, Infrastructure and Transport should order an air carrier to suspend operation because of her violation under certain rules, in which case the suspension of operation is likely to cause serious inconvenience to consumers of air transport services or to harm public interest, the Minister of the department may impose an administrative monetary penalty in lieu of the suspension of operation. In this regard, airline related civil money penalties are somewhat different from those of fair trade, which is the origin of the money penalties system in Korea. Civil money penalties in the field of fair trade are imposed on executive duty violations that undermine the value of the market economy order, and focus on reimbursement of profits due to violations and compensation for unfair spending by consumers. However, in the aviation sector, breach of duty by a business operator does not simply cause the property loss of the public, but it has a direct impact on life or property of the public. In this respect, aviation penalties are more likely to be administrative sanctions or punitive measures than refunds of unfair benefits, compared to penalties in the field of fair trade. In general, civil money penalties have been highly preferred as administrative sanctions because they are subject to investigations by administrative experts and thus, efficiency can be ensured and execution is quicker than judicial procedures. Moreover, in Korea, because punitive civil damages cannot awarded by the courts, the imposition of civil money penalties is recognized as a means of realizing social justice by recognizing the legal feelings of the people. However, civil money penalties are administrative sanctions, and in terms of effectiveness, they are similar to criminal fines, which are a form of punishment. Inadequate legislation and operation of penalties imposition may cause damage to the value of Constitution. Under the above recognition, this paper has been described for the purpose of identifying the present status of the civil money penalties imposition system and operating status in the area of air transport under the laws and regulations in Korea. Especially, this paper was focused on exploring the problem and improvement direction of Korean system through the comparative study with foreign laws and regulations.

• Proceedings of the Safety Management and Science Conference
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• 2012.04a
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• pp.435-446
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• 2012

생활을 향상시키고 개선하기 위해 화학물질은 전 세계적으로 널리 이용 되고 있고, 또한 국내에는 38,000여종의 화학물질이 유통되고 있다. 그러나 화학물질은 그 이점에도 불구하고 사람이나 환경에 유해 영향을 가져올 가능성이 있어 위험물안전관리법에서는 3,000여종을 위험물로 분류하여 규제하고 있다. 위험물에 관련하여 유해화학물질관리법, 위험물안전관리법, 고압가스안전관리법, 총포 도검 화약류단속법, 원자력 진흥법, 농약관리법 등에서 개별적으로 규정하고 분류하고 있어 위험물질에 대한 표지사항이 해당 부처에 따라 상이하여 혼란을 야기하고 있고, 위험물에 대한 품목 및 품명의 고정으로 인하여 새롭게 생성된 위험물질에 대해 적용하는 데 문제점이 있다. 이에 의해 위험물질을 개별법에 따라 관리함으로써 중복된 위험물질 분류 및 관리의 문제가 있으며, 위험물질 분류에 있어서 위험물질에 따라 수송수단이 상이함에도 불구하고 수송수단별(도로, 철도, 해운, 항공) 위험물질에 대한 세분화된 자료가 부족하다. 따라서 수송관점에서 표준화된 위험물 물질정보의 분류와 코드화 방안개발이 필요하다. 본 연구는 국내 외 문헌 검토 및 위험물에 관련된 법제도 비교를 통하여 위험물 수송관리체계 정비방안과 위험물 수송사고의 문제점을 도출하고 기존의 위험물 분류체계에서 운송관점에서의 위험물 매칭테이블을 구축하고 신속한 사고대응을 위한 위험물질별 코드화 방안을 제안하도록 하겠다.

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.1
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• pp.117-149
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• 2015

On May 16, 2014 the Supreme Court of Korea rendered its decision with respect to litigation filed by All Nippon Airways Co., Ltd. ("ANA") for revocation of an order of correction and payment of a penalty imposed by the Korea Fair Trade Commission ("KFTC"). On or around September 2002, ANA and various airlines operating air cargo service from Japan to Korea were allegedly to have agree to introduce of fuel surcharge into their rates on cargo fares in an attempt to recoup falling profits from rising of oil price. As this hard core cartel was per se prohibited under Korean competition law (The Monopoly Regulation And Fair Trade Act), KFTC began an investigation and consequently with fruitful results imposed an amount of penalty and issued an order of prohibition. ANA protested against this imposition by filing suit against KFTC under the reasons that (1) their agreement was simply pursuant to the relevant laws and regulations including Air Transport Agreement between Korea and Japan, (2) there was an administrative guidance from Japanese government to allow this agreement, (3) extraterritorial application of Korean competition law to the agreement in this matter was improper as it was made within Japan and targeted only for the shipment from Japan to Korea: accordingly there is not a direct and serious effect between the agreement and any result of anti-competitive. This article aims to review ANA's allegation and the judgement delivered by Korean court under some issues respectively; (1) whether there is an effectively actual anti-competitive cartel between airlines including plaintiff, (2) whether filed rate doctrine is reasonable and applicable in this case for precluding wrongfulness, (3) what is the reasonable limitation of boundaries in extraterritorial application of Korean competition law. Additionally, this article also suggests to concern particular features of air transport business as an regulated industry in judging the unfair restrain on competition.