• Journal of the Korean Society of Marine Environment & Safety
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• v.17 no.1
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• pp.47-52
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• 2011

On the high seas, under international law, a ship is subject to the jurisdiction of the state whose flag she flies. Vessels of any flag are free to navigate the high seas without interference from other states. Thus, there are certain limits of coastal state's exercising law enforcement jurisdiction over a foreign flag vessel on the high seas. However, there are exceptions to exclusive flag state jurisdiction. One of them is the theory of constructive presence. The other is theory of partial execution. Korea Coast Guard's law enforcement authority should be exercised more actively based on those theories supported by the international cases.

• Journal of the Korea Institute of Information and Communication Engineering
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• v.14 no.7
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• pp.1729-1736
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• 2010

Government ships, the ships owned by a state and operated for non-commercial purposes (hereinafter, government ships) are entitled to sovereign immunity. In accordance with sovereign immunity under traditional international law, states enjoy immunity from the jurisdiction of courts of another state. Sovereign immunity is the general principle accomplished through judicial cases and international treaties since the 19th century. The problem is that the restriction of jurisdiction on foreign government ships in Korean jurisdictional waters is a considerable threatening factor on the maritime security situation. In spite of dubious intention of foreign government ships, the counter measures should be limited because of sovereign immunity.

• Proceedings of KOSOMES biannual meeting
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• 2017.11a
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• pp.280-280
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• 2017

• International Commerce and Information Review
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• v.1 no.2
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• pp.273-294
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• 1999

인터넷은 단순히 통신수단의 변화에 그치지 않고 문화 사회 정치의 각 방면에서 커다란 변혁을 불러일으키고 있으며, 물품매매계약이 전자적으로 이루어지는 경우 전자상거래계약의 성립시기, 방식 및 전자문서의 효력, 준거법(applicable law, governing law), 재판관할(jurisdiction)등에 관하여 복잡 다양한 문제점들을 야기하게 된다. 전자상거래 계약상에서 청약의 기준에 관해서는 매도인의 행위를 청약으로 보는 것이 다수설이다. 따라서 매수인이 선돼한 상품에 대하여 구입의사를 표시, 즉 승낙하면 바로 전자상거래 계약이 성립한다고 할 수 있다. 그리고 인터넷을 이용한 전자상거래의 경우에는 국경을 초월하여 세계의 모든 소비자들을 그 대상으로 함으로써 준거법의 문제와 재판관할권의 문제가 상당히 중요한 문제로 부각되고 있는 바, 준거법의 결정은 일반적으로 당사자의 자유로운 의사에 따라 결정된다. 재판관할권에 대해서는 재판관할에 대한 합의가 있는 경우에 우려 나라는 이를 유효한 것으로 인정하고 있으나, 일반 소비자들을 대상으로 하고 있는 전자상거래의 특성을 고려할 때 이는 다소 무리가 따른다고 생각된다. 또한 재판관할에 대한 합의가 없는 경우에는 피고의 주소지국이 재판관할권을 부여받는바, 격지자간의 소액거래에서는 그 실익을 기대할 수 없는 것이 현실이다.

• Strategy21
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• s.46
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• pp.57-88
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• 2020

Surrounded by powerful states, Korean maritime and airspace jurisdiction is constantly exposed to intrusions by its neighbors. Korean government has been, however, exercising significant degree of moderation in response to the occasions. This is where my research starts off: why does Korean government implement only mild measures, which sometimes seem to be insufficient, to infringements on maritime and airspace jurisdiction? I found the answer from the principles and rules of international law: to promote peace and prosperity of the international community, it placed limitations on state rights and prohibited use of force. This point will be elaborated in the paper by examining the contents of restriction and the history of the relevant principles. In the second part of the paper, I explore what strategy could be employed by a state to protect its jurisdiction under present international legal regime. Interestingly, international law, which restricts state jurisdiction, at the same time provides opportunities for lesser powers to protect their state jurisdiction. In the meantime, diplomatic efforts are required. I offer examples of Norway and Philippines, who successfully upheld their arguments against powerful states via international legal regime.

• Convergence Security Journal
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• v.13 no.2
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• pp.133-141
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• 2013

After Presidential Declaration of Korea's Rights in the Surrounding Seas(Lee, Seung-Man Line), Japanese government objected to the Korean government's Declaration of the Peace Line. Japan didn't agree with Korean's ownership of Dokdo and has tried to develop the Dokdo issue into an international dispute and solved it by resorting the International Court of Justice(ICJ) since 1954. As mentioned before, ICJ doesn'thave the right of compulsory jurisdiction of ownership of Dokdo between Korea and Japan. Therefore, we don'thave to agree with Japan's suggestion of bringing a case to ICJ to solve the Dokdo issue. It is not the best way to maintain the international peace judging by ICJ as well. When Japan try to institute case unilaterally, We should remember that it is possible to give the expanding jurisdiction to the ICJ. It is the best way that solving the dispute of Dokdo is to establish the sovereignty over Dokdo while strengthen the control the Dokdo effectively. In conclusion, no matter how Japan claims ownership of Dokdo, it cannot be subject to negotiation.

• The Korean Journal of Air & Space Law and Policy
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• v.27 no.1
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• pp.3-27
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• 2012

Although aviation safety and security have been improving, which has made air transportation more reliable, the international aviation community has witnessed a steady increase in the number of unruly passenger incidents. Under international law, the Tokyo Convention (The Convention on Offences and Certain Other Acts Committed on Board Aircraft of 1963) is applicable to unruly passenger issues. While the Tokyo Convention has been a successful convention which 185 member states have ratified, it has its shortcomings. Three major shortcomings are related to definition, jurisdiction, and enforcement. Firstly, the Tokyo Convention does not provide for a definition of unruly passengers, thereby resulting in a situation where conduct that may be considered to be a criminal offence in the country of embarkation may not be a criminal offence in the country where the aircraft lands. Having different definitions may lead to ineffective action on the part of air carriers. Secondly, the fact that the state of landing does not bear jurisdiction produces circumstances in which it is impossible to punish an unruly passenger who clearly committed an offence on board. Thirdly, the Tokyo Convention only recognizes the competence of the state of registry to exercise criminal jurisdiction but does not impose the duty to actually use that competence in any specific case. Along with ratifying the Tokyo Convention, Korea enacted the Aviation Navigation Safety Act in 1974 as a domestic legal approach to dealing with the problem of unruly passengers. Partially reflecting the ICAO's model legislation, Circular 288, the Aviation Safety and Security Act was enacted in 2002. Although the Korean Aviation Safety and Security Act is a comprehensive act which has been constantly updated, there is no provision with respect to jurisdiction and only the Korean criminal code is applicable to jurisdiction. The Korean criminal code establishes its jurisdiction in connection with territoriality, nationality and registration, which is essentially the same as the jurisdictional principles of the Tokyo Convention. Thus, the domestic legal regime cannot close the jurisdictional gap either. Similarly, Korean case law would not take an active posture to jurisdiction unless the offence in question is a serious one, such as hijacking. A Special Sub Committee of the ICAO Legal Committee (LCSC) was established to examine the feasibility of introducing amendments to the Convention on Offences and Certain Other Acts Committed on Board Aircraft of 1963 with particular reference to the issue of unruly passengers. The result of the ICAO's findings should lead to the modernization of the Tokyo Convention, thereby reducing the number of incidents caused by unruly passengers and enabling all parties concerned to respond to unruly passengers more effectively.

• Journal of the Korean Society of Marine Environment & Safety
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• v.18 no.5
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• pp.446-454
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• 2012

This study discusses effective extraterritorial application of criminal Law outside the territorial sea. The paper focuses on the factual differences between vessels and cars which justify the varying standard. Thus, warrantless searches and safety inspection need to be validated because of the exigent circumstances of the sea. Warrantless searches at sea may also be justified based on border search exception. These theories in U. S. law will be helpful for legislation and law enforcement related to the Korean Coast Guard's mission. The paper also discusses Korean Coast Guard's Act's newly enacted provisions concerning search, arrest and hot pursuit.

• Journal of the Korean Society of Marine Environment & Safety
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• v.19 no.2
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• pp.179-185
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• 2013

UNCLOS recognizes the right of innocent passage in the ocean but grants jurisdiction and governance to the state of the flag the vessel flies. However, by granting the right to determine vessel's nationality to each country in UNCLOS and by practically consenting inconsistency with the ownership and the state of flag has made the keeping of maritime order quite difficult. Especially, acknowledging the exclusive rights of the flag state on criminal jurisdiction hinders the owner state from exercising its rights and exposes the problem of not taking into account the opinion of the affected state party. This study addresses these issues and examines international regulations on vessels and flag states, mainly UNCLOS, and provides case studies on how criminal jurisdiction is determined when accidents occur at sea. Furthermore, it takes a deeper look into the mutual assistance system in criminal matters and proposes some alternatives on how to overcome these issues.

• Proceedings of KOSOMES biannual meeting
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• 2017.04a
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• pp.140-140
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• 2017