• The Korean Journal of Air & Space Law and Policy
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• v.35 no.3
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• pp.3-37
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• 2020

The aircraft crew operating on international routes performs almost identical tasks as police officials in terms of dealing with the unlawful interference in the aircraft. This means that the liability question which is related to the law enforcement by the police officer may arise regarding the crew's performance of his or her duties. With regard to the carrier's liability due to the crew's unlawful action, there are distinctive characteristics from the liability due to police officers' unlawful action. In case of the claim for damages by the crew's unlawful action, the first question should be whether such action complies with the requirements under the Tokyo Convention 1963. If such action does not conform with the Tokyo Convention 1963, we should examine that claim under the State Compensation Act, the Montreal Convention 1999, and the Civil Act of Korea. The examination under the Tokyo Convention 1963 is not so different from the Korean Court's precedents. However, the court should consider the characteristics of the environment surrounding the crew. The action which is not indemnified under the Tokyo Convention 1963 should be examined under the tort laws. Because the aircraft crew is private persons entrusted with public duties under Korean Law, the State Compensation Act may apply. However, further studies regarding the harmonious interpretation with the Montreal Convention 1999 is needed. With regard to the carrier's liability, the Montreal Convention of 1999 should be applied to the crew's unlawful actions onboard. This is because the Montreal Convention of 1999 preempts the national law for the events that occurred during transportation, and there is no provision which excludes such unlawful actions from the scope of its application. On the other hand, the national law, such as the Civil Act of Korea, applies to unlawful actions taken after transportation. This is because the interpretation that infinitely expands the scope of the Montreal Convention 1999 should not be allowed. Given the foregoing, the standard of the claim for damages due to the crew's unlawful action varies depending on the place where the specific action was taken. As a result, the type of damage recoverable and the burden of proof also varies accordingly. Carriers and crew members must perform their duties with this in mind, but in particular, they should observe the proportionality, and when interpreting the law, it is necessary for the court or lawyer to consider the special characteristics of the work environment.

• The Korean Journal of Air & Space Law and Policy
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• v.29 no.2
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• pp.55-86
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• 2014

The U.S. General Aviation Revitalization Act of 1994 (the "GARA") created a statute of repose that bars any claims arising from an aviation product or component more than 18 years after its date of delivery. The statute was enacted to protect general aviation aircraft manufacturers from the excessive product liability costs. The GARA included four exceptions: (a) medical emergency patients, (b) those not on the aircraft, (c) those based on written warranties, and (d) those causally related to a "knowing misrepresentation" made by the manufacturer to the FAA. The GARA also incorporates a provision for revised starting point of reckoning to which any repairs or replacements of an aviation product. This note aimed to discuss General Aviation and GARA in depth including the meaning of statue of repose, its exceptions. The various precedents about GARA were also reviewed in here as well. From the GARA, as a comparative legal issue in aviation product liability, there can be some suggestions for revision of Korean Products Liability Act. First, it seems to be reasonable to regulate the specific statute of repose provisions for various category of products. In GARA, the period of 18 years is reasonable concerning to the average aircraft life. Second, in order to avoid exhausting debate and for the judicial economy, it needs to clarify when the statute begins to run. GARA's 18 year limitation period begins to run on the different date whether it was delivered to its first purchaser or a person engaged in the business of selling the aircraft. Last but not least, proper exceptions should be added into the law for equity matter of the statute of repose does not apply. For example, a manufacturer is not protected by GARA if it knowingly misrepresents certain safety information to the FAA.

• Ocean and Polar Research
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• v.37 no.4
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• pp.341-356
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• 2015

A nation has a sovereign right to develop and use its natural resources according to its policies with regard to development and the relevant environment. A nation also has an obligation not to harm other countries or damage environments of neighboring countries as consequences of such actions of developments or use of natural resources. However, international precedents induce a nation to take additional actions not to cause more damages from the specific acts causing environmental damages beyond national borders, when such acts have economic and social importance. That is to say that there is a tendency to resolve such issues in a way to promote the balance between the mutual interests by allowing such actions to continue. A solution to China's Three Gorges Dam dilemma based on a soft law approach is more credible than relying on a good faith approach of national responsibilities and international legal proceedings since the construction and operation of the dam falls within the category of exercising national sovereign rights. If a large scale construction project such as the Three Gorges Dam or operation of a nuclear power plant causes or may cause environmental damage beyond the border of a nation engaged in such an undertaking, countries affected by this undertaking should jointly monitor the environmental effects in a spirit of cooperation rather than trying to stop the construction and should seek cooperative solutions of mutual understanding to establish measures to prevent further damages. If China's Three Gorges Dam construction and operation cause or contain the possibility of causing serious damages to marine environment, China cannot set aside its national responsibility to meet international obligations if China is aware of or knows about the damage that has occurred or may occur but fail to prevent, minimize, reverse or eliminate additional chances of such damages, or fails to put in place measures in order to prevent the recurrence of such damages. However, Korea must be able to prove a causal relationship between the relevant actions and resulting damages if it is to raise objections to the construction or request certain damage-prevention actions against crucial adverse effects on the marine environment out of respect for China's right to develop resources and acts of use thereof. Therefore, it is essential to cumulate continuous monitoring and evaluations information pertaining to marine environmental changes and impacts or responses of affected waters as well as acquisition of scientific baseline data with observed changes in such baseline. As China has adopted a somewhat nonchalant attitude toward taking adequate actions to protect against marine pollution risks or adverse effects caused by the construction and operation of China's Three Gorges Dam, there is a need to persuade China to adopt a more active stance and become involved in the monitoring and co-investigation of the Yellow Sea in order to protect the marine environment. Moreover, there is a need to build a regular environmental monitoring system that includes the evaluation of environmental effects beyond borders. The Espoo Convention can serve as a mechanism to ease potential conflicts of national interest in the Northeast Asian waters where political and historical sensitivities are acute. Especially, the recent diplomatic policy advanced by Korea and China can be implemented as an important example of gentle cooperation as the policy tool of choice is based on regional cooperation or cooperation between different regions.

• The Korean Journal of Air & Space Law and Policy
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• v.32 no.2
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• pp.3-31
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• 2017

On 12 October 2017, the English Royal Courts of Justice delivered its decision about air carrier's compensation liability for the flight delay. In the cases the passengers suffered delays at a connecting point and, consequently, on arrival at their final destination. They claimed compensation under Regulation 261/2004 (the "Regulation"), as applied by the Court of Justice of the European Union (the "CJEU") in Sturgeon v. Condor [2009]. The principal issues were whether delays suffered by the passengers during the second leg of their respective journeys were compensable under the Regulation, whether there was jurisdiction under the Regulation and whether the right to compensation under the Regulation is, insofar as non-Community air carriers are concerned, excluded by virtue of the exclusive liability regime established under the Montreal Convention 1999. The passengers, the plaintiff, argued that the relevant delay was not that on flight 1 but that suffered at the "final destination". They maintained that there was no exercise by the EU of extraterritorial jurisdiction as the delay on flight 2 was merely relevant to the calculation of the amount of compensation due under the Regulation. The air carrier, the defendant, however argued that the only relevant flights for the purpose of calculating any delay were the first flights (flights 1) out of EU airspace, as only these flights fell within the scope of the Regulation; the connecting flights (flights 2) were not relevant since they were performed entirely outside of the EU by a non-Community carrier. Regarding the issue of what counts as a delay under the Regulation, the CJEU held previously on another precedents that the operating carrier's liability to pay compensation depends on the passenger's delay in arriving at the "final destination". It held that where the air carrier provides a passenger with more than one directly connecting flight to enable him to arrive at their destination, the flights should be taken together for the purpose of assessing whether there has been three hours' or more delay on arrival; and that in case of directly connecting flights, the final destination is the place at which the passenger is scheduled to arrive at the end of the last component flight. In addition, the Court confirmed that the Regulation applied to flights operated by non-Community carriers out of EU airspace even if flight 1 or flight 2 lands outside the EU, since the Regulation does not require that a flight must land in the EU. Accordingly, the passengers' appeal from the lower Court was allowed, while that of air carrier was dismissed. The Court has come down firmly on the side of the passengers in this legal debate. However, this result is not a great surprise considering the recent trends of EU member states' court decisions in the fields of air transport and consumer protection. The main goal of this article is to review the Court's decision and to search historical trend of air consumer protection especially in EU area.

• 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.

• The Korean Society of Law and Medicine
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• v.16 no.2
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• pp.159-193
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• 2015

Owing to causes such as population aging, increased use of various medical devices, long-term hospitalization of various patients with reduced immune function such as cancer, diabetes, and organ transplant patients, and the growing size of hospitals, hospital infections are continuing to increase. As seen in the MERS crisis of 2015, hospital infections have become a social and national problem. In order to prevent damage due to such hospital infections, it is necessary to first strictly implement measures to prevent hospital infections, while, on the other hand, providing proper relief of damage suffered due to hospital infections. However, the mainstream attitude of judicial precedents relating to hospital infection cases has been judged to in fact shift responsibility over damages due to hospital infections on the patient. In light of the philosophy of the damage compensation system, whose guiding principle if the fair and proper apportionment of damages, there is a need to seek means of drastically relaxing the burden of proof on the patient's side relative to conventional legal principles for relaxing the burden of proof, or the theory of de facto estimation. In relation to such need, the German civil code (Burgerliches Gesetzbuch), which defines contracts of medical treatment as typical contracts under the civil code, and has presumption of negligence provisions stipulating that, in cases such as hospital infections which were completely under the control of the medical care providers, if risks in general medical treatment have been realized which cause violations of the life, body, or health of patients, error on the part of the person providing medical care is presumed, was examined. Contracts of medical treatment are entered into very frequently and broadly in the everyday lives of the general public, with various disputes owing thereto arising. Therefore, it is necessary to, by defining contracts of medical treatment as typical contracts under the civil code, regulate the content of said contracts, as well as the proof of burden when disputes arise. If stipulations in the civil code are premature as of yet, an option may be to regulate through a special act, as is the case with France. In the case of hospital infection cases, it is thought that 'legal presumption of negligence' relating to 'negligence in the occurrence of hospital infections,' which will create a state close to equality of arms, will aid the resolution of the realistic issue of the de facto impossibility of remedying damages occurring due to negligence in the process of occurrence of hospital infections. Also, even if negligence is presumed by law, as the patient side is burdened with proving the causal relationships, such drastic confusion as would occur if the medical care provider side is found fully liable if a hospital infection occurs may be avoided. It is thought that, alongside such efforts, social insurance policy must be improved so as to cover the expenses of medical institutions having strictly implemented efforts to prevent hospital infections in the event that they have suffered damages due to a hospital infection accident, and that close future research and examination into this matter will be required.

• Journal of Korean Historical Folklife
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• no.45
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• pp.263-289
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• 2014

King Munjong(文宗), the eleventh King of the Goryeo Dynasty, was the son of King Hyeonjong(顯宗), the eighth king, and the younger stepbrother(異母弟) of King Jeongjong(靖宗), the 10th king. Although King Jeongjong had four sons, he abdicated the throne to King Munjong. King Taejo(太祖) had opened the possibility for sons other than the eldest son to succeed to the throne. When King Jeongjong died, his sons were children under the age of 10 years. In the early period of the Goryeo Dynasty, when kings had young sons, there were precedents of abdicating the throne to their grown-up younger brothers. In addition, King Jeongjong and Munjong had an identical blood background. During the period, Goryeo people also naturally accepted the fact that a former king's younger brother succeeded to the throne. In this background, King Munjong ascended the throne. However, King Munjong did not ascend the throne after identifying state affairs with politic power. Therefore, he needed to increase his authority as the king. Moreover, as the sons of King Jeongjong had grown up, they could stir up trouble in future succession to the throne. Therefore, King Munjong intended to concentrate power on himself and remove trouble in future succession to the throne by selecting his son as successor to the throne. After the installation of Wangtaeja(王太子, the Crown Prince), King Munjong expanded and organized Donggunggwan(東宮官, the establishment of Secretariat of Wangtaeja) and carried out various rituals related to Wangtaeja. The control system for Donggunggwan was completed institutionally in 1068. At this time, the newly organized Donggunggwan was operated as a miniature version of the central government office. In addition, the ritual for the installation of Taeja, which was held in 1054, complied with regulated procedures. After the ritual of the installation, a ceremony to congratulate on Jangheungjeol(長興節, the birthday of Wangtaeja) was held in 1056. In 1064, the wedding ritual of Taeja took place, and the ritual for Taeja regulated in Yeji(禮志) of "Goryeosa(高麗史)" was carried out. In addition, the installation of Wangtaeja was made known overseas, and the Taeja of Goryeo was proclaimed by the Kitan three times. Such various measures played an important role in strengthening the status of Taeja as the man of authority next to the king. Later, Taeja demonstrated his status as the man of authority following the king by participating in state affairs on behalf of King Munjong who was not able to move about freely in his later years.

• The Korean Society of Law and Medicine
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• v.21 no.2
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• pp.75-103
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• 2020

There is a growing voice that medical information should be shared because it can prepare for genetic diseases or cancer by analyzing and utilizing medical information in big data or artificial intelligence to develop medical technology and improve patient care. The utilization and protection of patients' personal information are the same as two sides of the same coin. Medical institutions or medical personnel should take extra caution in handling personal information with high environmental distinct characteristics and sensitivity, which is different from general information processors. In general, the patient's personal information is processed by medical personnel or medical institutions through the processes of collection, creation, and destruction. Still, the use of terms related to personal information in the Medical Service Act is jumbled, or the scope of application is unclear, so it relies on the interpretation of precedents. For the medical personnel or the founder of the medical institution, in the case of infringement of Article 24(4), it cannot be regarded that it means only medical treatment information among personal information, whether or not it should be treated the same as the personal information under Article 23, because the sensitive information of patients is recorded, saved, and stored in electronic medical records. Although the prohibition of information leakage under Article 19 of the Medical Service Act has a revision; 'secret' that was learned in business was revised to 'information', but only the name was changed, and the benefit and protection of the law is the same as the 'secret' of the criminal law, such that the patient's right to self-determination of personal information is not protected. The Privacy Law and the Local Health Act consider the benefit and protection of the law in 'information learned in business' as the right to self-determination of personal information and stipulate the same penalties for personal information infringement such as leakage, forgery, alteration, and damage. The privacy regulations of the Medical Service Act require that the terms be adjusted uniformly because the jumbled use of terms can confuse information subjects, information processors, and shows certain limitations on the protection of personal information because the contents or scope of the regulations of the Medical Service Law for special corporations and the Privacy Law may cause confusion in interpretation. The patient's personal information is sensitive and must be safely protected in its use and processing. Personal information must be processed in accordance with the protection principle of Privacy Law, and the rights such as privacy, freedom, personal rights, and the right to self-determination of personal information of patients or guardians, the information subject, must be guaranteed.

• The Critical Review of Religion and Culture
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• no.29
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• pp.134-167
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• 2016

This paper aims at exploring the characteristics and meanings of religious freedom controversy surrounding religious education, with special reference to proselytism, in protestant mission school in recent Korea. Most of protestant mission schools have been providing students compulsory religion class and chapel service in the name of religious education. According to the school authorities, religious education should be provided for the realization of founding philosophy, and they say that mission school has the right to religious education. On the contrary, many non-christian students argue that their religious liberty is seriously violated by required religious education especially compulsory chapel worship. So serious conflicts broke between mission school authorities and students. Supreme Court decided that Soongsil University has the right to maintain compulsory chapel service, ruling that Daegwang High School should not maintain required chapel worship. It seems that Supreme Court gave different decisions to high school and university respectively, considering the differences between high school and university in application for admission to a school, students' critical consciousness, school's autonomous rights, etc. However, these precedents are being challenged by many peoples and groups. There are three agents which are involved in religious freedom controversy in mission school. The first are mission school authorities supported by religious groups, the second government supported by political parties, and the third mission school students guided by NGO. Among them protestant groups are playing the major role in making religious freedom problems in mission school. Protestant groups try to convert mission school students to protestantism by compulsory chapel service and religion class. Such a protestant proselytism becomes a cause of oppressing students' human rights and religious liberty. In this situation government has a responsibility to protect the students' rights to religious freedom. But government seldom impose sanctions on the protestant mission schools' compulsory programs. The reason why government does not restrict mission school's unlawful religious education is because protestant groups have strong influence in voting. Eventually civil movements organizations involved in religious freedom controversy for the sake of students's human rights. In conclusion, the assailment is protestant proselytism, the accessory is government, the victim is students in the religious education in mission school in recent Korea.

• Journal of Korean Society of Forest Science
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• v.100 no.3
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• pp.522-534
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• 2011

The aim of this study is to draw forth the tasks for establishing the right of native biology in Korea through the case study on 'Access on genetic resources and Benefit Sharing'. For this purpose, this study decided on its research subject by selecting Hoodia, on which ABS treaty was made the most recently, through the examination of the representative ABS precedents on plant species. This study analyzed the process background of ABS on Hoodia, and compared & analyzed the ABS procedures of 'Bonn Guidelines' adopted by the 6th Conference of the Parties of the Convention on Biological Diversity in 2002 and Hoodia case. Together with the ABS major issues in common drawn as a result of this analysis, and "Nagoya Protocol" adopted by the 10th Conference of the Parties of the Convention on Biological Diversity, this study intended to shed a light on the impending tasks which Korea faces at present and its role relationship. The research results are as follows: 1. It is required that species habitats should be divided based on biological classification and its subsequent community should be established with the development of infrastructure such as a community's independent production, management and monitoring of bio-species. 2. There needs to be a designation of ABS National Focal Point for sharing of ABS-related general information, boosting of implementation of the relevant convention. 3. There needs to be the establishment of ABS convention system consequent on legislative, administrative, political procedures, and designation of the Competent National Authorities for the provision of the format of Prior Informed Consent (PIC) and Mutually Agreed Terms (MAT) and their contents assessment and confirmation. 4. There should be the establishment of integrated management system of ABS-related research and development of forest biological resources and its relevant research projects. 5. There should be information development through the distribution of responsibility and role between the ministries and offices concerned according to bio-resources, and there needs to be efforts in aiming for opening a working group of academic-industrial institutions for developing a mutually interchangeable system. 6. It's required that the efficient access between industrial circles and the people should be promoted by setting up ABS support center of biological resources in ministry and office's charge. 7. There should be a selection of a national supervisory organization for securement of the right of a local community and monitoring of ABS convention implementation, and a countermeasure system for preventing outflow of forest bioresources. Conclusively, it's judged that it will be possible to inquire into the countermeasures for the establishment of the native forest biology dominion through such research results.