• The Korean Journal of Air & Space Law and Policy
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• v.35 no.2
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• pp.169-195
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• 2020

With the increase in air transportation, air delays are inevitable, and the damage of air consumers is also increasing. In Korea, the Ministry of Land, Infrastructure and Transport announced 「the Criteria for Protection of Users of Air Transportation」, but the Criteria does not include aviation delays except Tarmac delay, but this criteria is a only public notice, not an Act. Lately, a clause about Tarmac delay was newly established as Article 61bis of the Aviation Business Act, and was enacted from May 27, 2020. The Air carriers' Tarmac delay are subject to mandatory regulations. This research showed how lawsuits were implemented for the protection of aviation consumers related to aviation delays prior to the imposition of this article. In addition, the study examined at the public law level, whether the protection rights of aviation consumers is the fundamental right under the Constitution and whether the government should be the main subjects of consumer protection. And then we studied the effect of enforcement about the Tarmac Delay Rule of the United States. This rule acts as a federal regulation. Subsequently, the Biscone case presented that it was not easy for the US court to accept a lawsuit against the passengers for tarmac delay. There are limitations in remedying the damages of airline consumers due to delays either in Korea trial or the U.S. trial. Finally it needs strengthening the penalty to secure the effectiveness of the Tarmac delay clause regulations. In order to protect airline consumers, it was proposed that the protection of aviation consumer law should be established through the revision as the Enforcement Rules of the Airline Business Act.

• The Korean Journal of Air & Space Law and Policy
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• v.35 no.2
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• pp.3-40
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• 2020

The term "accident" in the Warsaw Convention of 1929 and the Montreal Convention of 1999, which govern carrier liability in international air transport, is an important criterion for determining carrier liability. However, because there is no explicit definition of the term in the treaty provisions, the term is largely subjected to the judgment and interpretation of the courts. Although there have been numerous changes in purpose and circumstance in the transition from the Warsaw regime to the conclusion of the Montreal Convention, there was no discussion on the concept of "accident" therefore, even after the adoption of the Montreal Convention, there is no doubt that the term is to be interpreted in the same manner as before. On this point, the United States Supreme Court's Air France v. Saks clarified the concept of "accident" and is still cited as an important precedent. Recently, the CJEU, in GN v. ZU, presented a new concept of "accident" introduced in the Montreal Convention: that "reference must be made to the ordinary meaning" in interpreting "accident" and that the term "covers all situations occurring on aboard an aircraft." Furthermore, the CJEU ruled that the term does not include the applicability of "hazards typically associated with aviation," which was controversial in previous cases. Such an interpretation can be reasonably seen as the court's expansion of the concept of "accident," with a focus on "protecting consumer interests," a core tenet of both the Montreal convention and the European Union Regulations(EC: No 889/2002). The CJEU's independent interpretation of "accident" is a departure from the Warsaw Convention and the Saks case, with their focus on "carrier protection," and instead focuses on the "passenger protection" standard of the Montreal Convention. Consequently, this expands both the court's discretion and the carrier's risk management liability. Such an interpretation by the CJEU can be said to be in line with the purpose of the Montreal Convention in terms of "passenger protection." However, there are problems to be considered in tandem with an expanded interpretation of "accident." First, there may be controversy concerning "balance" in that it focused on "passenger protection" in relation to the "equitable balance of interests" between air carriers and passengers, which is the basic purpose of the agreement. Second, huge losses are expected as many airlines fly to countries within the European Union. Third, there is now a gap in the interpretation of "accident" in Europe and the United States, which raises a question on the "unity of rules," another basic tenet of the Convention. Fourth, this interpretation of "accident" by the CJEU raises questions regarding its scope of application, as it only refers to the "hazards typically associated with aviation" and "situations occurring aboard an aircraft." In this case, the CJEU newly proposed a novel criterion for the interpretation of "accident" under the Montreal Convention. As this presents food for thought on the interpretation of "accident," it is necessary to pay close attention to any changes in court rulings in the future. In addition, it suggests that active measures be taken for passenger safety by recognizing air carriers' unlimited liability and conducting systematic reforms.

• The Korean Journal of Air & Space Law and Policy
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• v.21 no.2
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• pp.71-96
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• 2006

This paper intends to describe the carrier's duty for the delivery of international air cargo and the carrier's liability for the illegal delivery of cargo under the Montreal Convention, lATA Conditions of Carriage for Cargo and judicial precedents. Under the Article 13 of Montreal Convention, the consignee is entitled, on arrival of the cargo at the place of destination, to require the carrier to deliver the cargo to it, on payment of the charge due and on complying with the conditions of carriage. And unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee as soon as the cargo arrives. Under the Article 18 of Montreal Convention, the carrier is liable for damage sustained in the event of the destruction or less of or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air. And the carriage by air comprises by the period during which the cargo is in the carriage of the carrier. Under the Article 11 of lATA Conditions of Carriage for Cargo, carrier is liable to shipper, consignee of any other person for damage sustained in the event of destruction of loss of, or damage to, or delay in the carriage of cargo only if the occurrence which caused to the damage so sustained took place during the carriage as defined under Article 1. According to the precedent of Korean Supreme Court sentenced on 22 July 2004, the freight forwarder as carrier was not liable for the illegal delivery of cargo to the notify party (actual importer) on the airway bill by the bonded warehouse operator because the freight forwarder did not designate the bonded warehouse and did not hold the position of employer to the bonded warehouse operator. In conclusion, the carrier or freight forwarder should pay always attention the movement and condition of the cargo not to be liable for the illegal delivery of cargo.

• Journal of environmental and Sanitary engineering
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• v.24 no.4
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• pp.1-26
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• 2009

We conclude the following with air pollution data measured from city measurement net administered and managed in Gwangju for the last 7 years from January in 2001 to December in 2007. In addition, some major statistics governed by Gwangju city and data administered by Gwangju as national official statistics obtained by estimating the amount of national air pollutant emission from National Institute of Environmental Research were used. The results are as follows ; 1. The distribution by main managements of air emission factory is the following ; Gwangju City Hall(67.8%) > Gwangsan District Office(13.6%) > Buk District Office(9.8%) > Seo District Office(5.5%) > Nam District Office(3.0%) > Dong District Office(0.3%) and the distribution by districts of air emission factory ; Buk District(32.8%) > Gwangsan District(22.4%) > Seo District(21.8%) > Nam District(14.9%) > Dong District(8.1%). That by types(Year 2004~2007 average) is also following ; Type 5(45.2%) > Type 4(40.7%) > Type 3(8.6%) > Type 2(3.2%) > Type 1(2.2%) and the most of them are small size of factory, Type 4 and 5. 2. The distribution by districts of the number of car registrations is the following ; Buk District(32.8%) > Gwangsan District(22.4%) > Seo District(21.8%) > Nam District(14.9%) > Dong District(8.1%) and the distribution by use of car fuel in 2001 ; Gasoline(56.3%) > Diesel(30.3%) > LPG(13.4%) > etc.(0.2%). In 2007, there was no ranking change ; Gasoline(47.8%) > Diesel(35.6%) > LPG(16.2%) >etc.(0.4%). The number of gasoline cars increased slightly, but that of diesel and LPG cars increased remarkably. 3. The distribution by items of the amount of air pollutant emission in Gwangju is the following; CO(36.7%) > NOx(32.7%) > VOC(26.7%) > SOx(2.3%) > PM-10(1.5%). The amount of CO and NOx, which are generally generated from cars, is very large percentage among them. 4. The distribution by mean of air pollutant emission(SOx, NOx, CO, VOC, PM-10) of each county for 5 years(2001~2005) is the following ; Buk District(31.0%) > Gwangsan District(28.2%) > Seo District(20.4%) > Nam District(12.5%) > Dong District(7.9%). The amount of air pollutant emission in Buk District, which has the most population, car registrations, and air pollutant emission businesses, was the highest. On the other hand, that of air pollutant emission in Dong District, which has the least population, car registrations, and air pollutant emission businesses, was the least. 5. The average rates of SOx for 5 years(2001~2005) in Gwangju is the following ; Non industrial combustion(59.5%) > Combustion in manufacturing industry(20.4%) > Road transportation(11.4%) > Non-road transportation(3.8%) > Waste disposal(3.7%) > Production process(1.1%). And the distribution of average amount of SOx emission of each county is shown as Gwangsan District(33.3%) > Buk District(28.0%) > Seo District(19.3%) > Nam District(10.2%) > Dong District(9.1%). 6. The distribution of the amount of NOx emission in Gwangju is shown as Road transportation(59.1%) > Non-road transportation(18.9%) > Non industrial combustion(13.3%) > Combustion in manufacturing industry(6.9%) > Waste disposal(1.6%) > Production process(0.1%). And the distribution of the amount of NOx emission from each county is the following ; Buk District(30.7%) > Gwangsan District(28.8%) > Seo District(20.5%) > Nam District(12.2%) > Dong District(7.8%). 7. The distribution of the amount of carbon monoxide emission in Gwangju is shown as Road transportation(82.0%) > Non industrial combustion(10.6%) > Non-road transportation(5.4%) > Combustion in manufacturing industry(1.7%) > Waste disposal(0.3%). And the distribution of the amount of carbon monoxide emission from each county is the following ; Buk District(33.0%) > Seo District(22.3%) > Gwangsan District(21.3%) > Nam District(14.3%) > Dong District(9.1%). 8. The distribution of the amount of Volatile Organic Compound emission in Gwangju is shown as Solvent utilization(69.5%) > Road transportation(19.8%) > Energy storage & transport(4.4%) > Non-road transportation(2.8%) > Waste disposal(2.4%) > Non industrial combustion(0.5%) > Production process(0.4%) > Combustion in manufacturing industry(0.3%). And the distribution of the amount of Volatile Organic Compound emission from each county is the following ; Gwangsan District(36.8%) > Buk District(28.7%) > Seo District(17.8%) > Nam District(10.4%) > Dong District(6.3%). 9. The distribution of the amount of minute dust emission in Gwangju is shown as Road transportation(76.7%) > Non-road transportation(16.3%) > Non industrial combustion(6.1%) > Combustion in manufacturing industry(0.7%) > Waste disposal(0.2%) > Production process(0.1%). And the distribution of the amount of minute dust emission from each county is the following ; Buk District(32.8%) > Gwangsan District(26.0%) > Seo District(19.5%) > Nam District(13.2%) > Dong District(8.5%). 10. According to the major source of emission of each items, that of oxides of sulfur is Non industrial combustion, heating of residence, business and agriculture and stockbreeding. And that of NOx, carbon monoxide, minute dust is Road transportation, emission of cars and two-wheeled vehicles. Also, that of VOC is Solvent utilization emission facilities due to Solvent utilization. 11. The concentration of sulfurous acid gas has been 0.004ppm since 2001 and there has not been no concentration change year by year. It is considered that the use of sulfurous acid gas is now reaching to the stabilization stage. This is found by the facts that the use of fuel is steadily changing from solid or liquid fuel to low sulfur liquid fuel containing very little amount of sulfur element or gas, so that nearly no change in concentration has been shown regularly. 12. Concerning changes of the concentration of throughout time, the concentration of NO has been shown relatively higher than that of $NO_2$ between 6AM~1PM and the concentration of $NO_2$ higher during the other time. The concentration of NOx(NO, $NO_2$) has been relatively high during weekday evenings. This result shows that there is correlation between the concentration of NOx and car traffics as we can see the Road transportation which accounts for 59.1% among the amount of NOx emission. 13. 49.1~61.2% of PM-10 shows PM-2.5 concerning the relationship between PM-10 and PM-2.5 and PM-2.5 among dust accounts for 45.4%~44.5% of PM-10 during March and April which is the lowest rates. This proves that particles of yellow sand that are bigger than the size $2.5\;{\mu}m$ are sent more than those that are smaller from China. This result shows that particles smaller than $2.5\;{\mu}m$ among dust exist much during July~August and December~January and 76.7% of minute dust is proved to be road transportation in Gwangju.

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.1
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• pp.207-244
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• 2015

Aviation safety is the stage in which the risk of harm to persons or of property damage is reduced to, and maintained at or below, an acceptable level through a continuing process of hazard identification and risk management. Many accidents and incidents have been taking place since 2014, while there had been relatively safer skies before 2014. International civil aviation community has been exerting great efforts to deal with these emerging issues, thus enhancing and ensuring safety throughout the world over the years. The Preamble of the Chicago Convention emphasizes safety and order of international air transport, and so many Articles in the Convention are related to the safety. Furthermore, most of the Annexes to the Convention are International Standards and Recommended Practices pertaining to the safety. In particular, Annex 19, which was promulgated in Nov. 2013, dealing with safety management system. ICAO, as law-making body, has Air Navigation Commission, Council, Assembly to deliberate and make decisions regarding safety issues. It is also implementing USOAP and USAP to supervise safety functions of member States. After MH 370 disappeared in 2014, ICAO is developing Global Tracking System whereby there should be no loophole in tracking the location of aircraft anywhere in world with the information provided by many stakeholders concerned. MH 17 accident drove ICAO to install web-based repository where information relating to the operation in conflict zones is provided and shared. In addition, ICAO has been initiating various solutions to emerging issues such as ebola outbreak and operation under extreme meteorological conditions. Considering the necessity of protection and sharing of safety data and information to enhance safety level, ICAO is now suggesting enhanced provisions to do so, and getting feedback from member States. It has been observed that ICAO has been approaching issues towards problem-solving from four different dimensions. First regarding time, it analyses past experiences and best practices, and make solutions in short, mid and long terms. Second, from space perspective, ICAO covers States, region and the world as a whole. Third, regarding stakeholders it consults with and hear from as many entities as it could, including airlines, airports, community, consumers, manufacturers, air traffic control centers, air navigation service providers, industry and insurers. Last not but least, in terms of regulatory changes, it identifies best practices, guidance materials and provisions which could become standards and recommended practices.

• The Korean Journal of Air & Space Law and Policy
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• v.35 no.1
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• pp.103-125
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• 2020

This paper reviews the EU Case, Claudia Wegener v. Royal Air Maroc SA [2018] ECLI:EU:C:2018:361, Case C-537/17. It analyzes some issues as to Wegener case by examining EU Regulations and practical point of views. Article 3(1)(a) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, entitled scope, provides: "this Regulation shall apply: (a) to passengers departing from an airport located in the territory of a Member State to which the Treaty applies; (b) to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, unless they received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is a Community carrier." ECJ held that must be interpreted as meaning that Regulation (EC) No 261/2004 applies to a passenger transport effected under a single booking and comprising, between its departure from an airport situated in the territory of a Member State and its arrival at an airport situated in the territory of a third State, a scheduled stopover outside the European Union with a change of aircraft. According to the Court, it is apparent from the regulation and case-law that when, as in the present case, two (or more) flights are booked as a single unit, those flights constitute a whole for the purposes of the right to compensation for passengers. Those flights must therefore be considered as one and the same connecting flight.

• The Korean Journal of Air & Space Law and Policy
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• v.33 no.1
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• pp.147-174
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• 2018

The air transportation industry is a field where control and interference of the state are generalized compared to other industries. However, the premise for national intervention in the air transportation industry is the determination of the nationality of the aircraft or airline company concerned. This is because it is necessary to clarify the distinction between the domestic and foreign carriers so that they can exercise airspace sovereignty. The purpose of this paper is to compare the current status and contents of Korean law and regulations on the determination of nationality with the foreign legal system. To this end, the starting point of the discussion is to look at the history of nationality restrictions on the US air transport industry and the issues that arise in the content and operation of the system today. In addition, this paper examined the provisions of the Japanese aviation law, which is very similar to that of Korea, and then compared the current legal provisions of the United States, Japan and Korea. As a conclusion, this paper sought the direction of revision of the Korean law on the basis of the foreign status of the restriction of nationality in the air transportation industry. Compared with our law, the US and Japan are generally regarded to be more concerned with the contents of their own airline companies than those of foreigners or non-citizen. In spite of the fact that there are many laws and regulations in the United States regarding the de facto dominance of domestic airline companies by foreigners, there have been a lot of controversies in this matter. By the way, Japan has been stipulating regulations on holding companies and affiliated companies. In the global era, it would be meaningful to check the status of the nationality restrictions in the aviation industry, which is based on internationality. I hope that this study will be able to build a legal institutional basis for Korea's aviation industry development from a reasonable protectionist point of view rather than a narrow nationalism in a rapidly changing era.

• Journal of Environmental Science International
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• v.19 no.12
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• pp.1343-1354
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• 2010

The purpose of the study was to analyze the persistence of HCH in atmosphere, soil, sediment and water of the western and southern regions of Korea. The samples from the western region were collected from Anmyeon Island, and the samples from the southern region were collected from Kimhae and Busan. The concentration of HCH isomers in atmosphere showed the pattern of $\alpha$-HCH>$\gamma$-HCH>$\beta$-HCH. The regions with high HCH concentration in the atmosphere are the regions that have been highly exposed to HCH used in the past, and the areas that have been influenced by the long range transport. The HCH that persists in the soil, water and sediment evaporates into the atmosphere, showing the characteristics of Air-Surface exchange. When the regional concentration distributions are compared, the concentration of HCH was higher in the atmosphere of a plain and the cities near the plain, than the urban areas. In this study, the ratio of $\alpha/\beta$-HCH was used as an indicator for estimating the source of Technical HCH and Lindane. According to the result, the contribution of Lindane was high in Kimhae plain and Kimhae urban areas. However, in Busan, the contribution of Technical HCH was higher than Lindane. In case of Anmyeon Island, the western region of Korea had high contribution from Tehcnical HCH. In soil and sediment, $\beta$-HCH was dominant. In water, $\gamma$-HCH was dominant among other isomers. Such results are due to $\gamma$-HCH inLindane. Furthermore, the source of $\gamma$-HCH in urban areas is assumed to be the use of medicine, medical supplies and other living supplies. Based on the results of this study, the management of HCH, a newly list up emerging POPs, should be strengthened by further research on sources, fate, persistency, accumulation and exposures and etc. to the risk assessments.

• The Korean Journal of Air & Space Law and Policy
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• v.6
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• pp.191-215
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• 1994

The concept of 'wilful misconduct" was initally used in article 25 of the Warsaw Convention of 1929. The concept was defined in the Hague Protocol, 1955, as having the following two differing concepts: i) "with the intent to cause damage" and ii) "recklessly and with the knowledge that damage would probably result." The concepts contained in the Hague Protocol were used in various international Conventions on carriage by sea, such as Article 2(e) and Article 3(4) of the Protocol adopted at Brussels on Feb. 23, 1968 to amend the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, signed at Brussels, Aug. 25, 1929(Hague-Visby Rules), Article 13 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, Dec. 13. 1974, Article 4 of the Convention on Limitation of Liability for Maritime Claims, 1976, Article 8(1) of the U.N. Convention on the Carriage of Goods by Sea, 1978(Hamburg Rules) and Article 21 (1) of the U.N. Convention on International Multimodal Transport of Goods, Geneva, 1980. The same concepts were also adopted in Article 746, 789-2(1), 789-3(2) of the Korean Maritime Commercial Law, revised in 1991. As of yet, the legal system of Korean Private Law recognizes only the concepts of "Vorsatz" and "grobe Nachlassigkeit", as is the case with German Private Law. The problem is that the concepts in the Convention do not coincide precisely with the concepts of "Vorsatz" and "grobe Nachlassigkeit". The author has conducted a comparative analysis of the treatment of the concepts of wilful misconduct and its varied interpretations, that is, "with the intent to cause damage" and "recklessly and with the knowledge that damage would probably result" in the Anglo-American law and in the continental European law in the following manner: 1. Background in which the concept of wilful misconduct was introduced in the Warsaw Convention. 2. The concept of "dol" in French private law. 3. The concepts of "Vorsatz" and "grobe Nachlassigkeit" in Korean private law. 4. Analysis of the concept of wilful misconduct in Anglo-American case law. 5. Analysis of the cases interpreting the concepts of "with intent to cause damage" and "recklessly and with knowledge that damage would probably result" in various jurisdictions. 6. The need to incorporate the concepts of "with the intent to cause damage" and "recklessly and with the knowledge that damage would probably result." 7. Faute inexcusable in French private law. Based upon the comparative analysis, the author points out the difference between the concepts of "wilful misconduct" or "with the intent to cause damage" and "Vorsatz", and between the concepts of "recklessly and with the knowledge that damage would probably result" and "grobe Nachlassigkeit" in the Convention and that of the Korean Private Law system. Additionally, the author emphasizes the importance of the unification in the interpretation of the provisions of the Conventions world wide.

• Journal of Environmental Health Sciences
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• v.44 no.2
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• pp.143-152
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• 2018

Objectives: The purpose of this study was to provide basic data for air pollutant exposure modelling and understanding the contribution of respective microenvironments by assessing the time-activity patterns of Korean students according to variables such as grade, sex, weekday, and weekend. Methods: In this study, we compared the residential time of 521 (both weekday and weekend) lower elementary students, 1,735 (1,054 on weekdays, 681 on weekends) upper elementary students, 2,210 (1,294 on weekdays, 916 on weekends) middle school students, and 2,366 (1,387 on weekdays, 979 on weekends) high school students in different microenvironments according to grade, sex, weekday, and weekend. We used data from the 2014 Time-Use Survey by the Korean National Statistical Office for upper elementary students through high school students, and surveyed time-activity patterns of 521 lower elementary students aged 7-9 years. Each microenvironment was divided into indoor, outdoor, and transport. Indoor environments were divided into home, school, and other places. In addition, the results of previous studies were compared to this study. Results: Weekday time-activity patterns of Korean students indicated that lower elementary students spent $16.02{\pm}2.53hr$ in the home and $5.37{\pm}2.32hr$ in school. Upper elementary students spent $14.11{\pm}1.79hr$ in the home and $6.27{\pm}1.37hr$ in school. Middle school students spent $12.83{\pm}2.22hr$ in the home and $7.48{\pm}1.88hr$ in school. High school students spent $10.65{\pm}2.86hr$ in the home and $10.23{\pm}2.86hr$ in school on weekdays. High school students spent the least amount of time in the home and the most time in school compared to other grades Conclusions: Students spent most of their time indoors, including in the home, school, and other indoors. On weekdays, as the grade increases, home residential times were decreased and school residential times were increased. Differences in time-activity patterns according to sex were not found for either weekdays or weekends. It is estimated that Korean students could be affected by school indoor air quality. High school students could be most affected by school indoor air quality since they spent the most time at school.