• The Korean Society of Law and Medicine
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• v.20 no.1
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• pp.133-162
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• 2019

Due to the nature of medical malpractice lawsuits, it is difficult for medical consumers, who are weak in getting information when it comes to health care problem, to secure all information inside the hospital. Even if you are confident about the hospital infection, it is true that people have difficult to obtain medical testimony by expert. It is seen as no easy task to testify to the malpractice of colleagues who work in the same field not only in our country but also abroad, when a doctor gives negative testimony to another doctor in a medical malpractice lawsuit. Although few health care providers will be motivated to take medical care from the outset, testimony or statements from a medical practitioner can have a significant impact on the outcome of a lawsuit, as it is impossible for the patient to control or be aware of the whole process of medical conduct, especially in the event of a hospital infection and the victim. If the hospital can prove the causality of damages caused by negligence of the employees or supervision of the hospital itself in a medical suit caused by the infection, the level of protection of the victim could be raised further. We sought to find a solution to these problems by looking at the provisions of other laws related to hospital infection. In particular, as the comparative legal review regarding hospital infection, Germany's legislative precedent sets a medical contract as a typical civil law contract, so it is thought that looking at German civil law regulations also has implications for Korean law. We also tried to improve the French Special Act 'rights of patients' and we can look at the consequent changes in court cases. Finally, the content of the U.S. case's and the theory of 'the doctrine of res ipsa loquitur' in relation to it show that doctors and hospitals have been forced to shift the burden of proof through this theory. This paper tried to find out the implications of mitigating the burden of proof by reviewing various issues that might be related to medical litigation of hospital infection from a comparative point of view.

• The Korean Journal of Air & Space Law and Policy
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• v.25 no.1
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• pp.3-26
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• 2010

The European Union(EU) has recently introduced its Directive 2008/101/EC to include aviation in the EU ETS(emissions trading system). As an amendment to Directive 2003/87/EC that regulates reduction of the green house gas(GHG) emissions in Europe in preparation for the Kyoto Protocol, 1997, it obliges both EU and non-EU airline operators to reduce the emission of the carbon dioxide(CO2) significantly in the year 2012 and thereafter from the level they made in 2004 to 2006. Emission allowances allowed free of charge for each airline operator is 97% in the first year 2012 and 95% from 2013 and thereafter from the average annual emissions during historical years 2004 to 2006. Taking into account the rapid growth of air traffic, i.e. 5% in recent years, airlines operating to EU have to reduce their emissions by about 30% in order to meet the requirements of the EU Directive, if not buy the emissions right in the emissions trading market. However, buying quantity is limited to 15% in the year 2012 subject to possible increase from the year 2013. Apart from the hard burden of the airline operators, in particular of those from non-European countries, which is not concern of this paper, the EU Directive has certain legal problems. First, while the Kyoto Protocol of universal application is binding on the Annex I countries of the Climate Change Convention, i.e. developed countries including all Member States of the European Union to reduce GHG at least by 5% in the implementation period from 2008 to 2012 over the 1990 level, non-Annex I countries which are not bound by the Kyoto Protocol see their airlines subjected to aircraft emissions reductions scheme of EU when operating to EU. This is against the provisions of the Kyoto Protocol dealing with the emissions of GHG including CO2, target of the EU Directive. While the Kyoto Protocol mandates ICAO to set up a worldwide scheme for aircraft emissions to contribute to stabilizing GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system, the EU ETS was drawn up outside the framework of the international Civil Aviation Organization(ICAO). Second, EU Directive 2008/101 defines 'aviation activities' as covering 'flights which depart from or arrive in the territory of a Member State to which the [EU] Treaty applies'. While the EU airlines are certainly subject to the EU regulations, obliging non-EU airlines to reduce their emissions even if the emissions are produced during the flight over the high seas and the airspace of the third countries is problematic. The point is whether the EU Directive can be legally applied to extra-territorial behavior of non-EU entities. Third, the EU Directive prescribes 2012 as the first year for implementation. However, the year 2012 is the last year of implementation of the Kyoto Protocol for Annex I countries including members of EU to reduce GHG including the emissions of CO2 coming out from domestic airlines operation. Consequently, EU airlines were already on the reduction scheme of CO2 emissions as long as their domestic operations are concerned from 2008 until the year 2012. But with the implementation of Directive 2008/101 from 2012 for all the airlines, regardless of the status of the country Annex I or not where they are registered, the EU airlines are no longer at the disadvantage compared with the airlines of non-Annex I countries. This unexpected premium for the EU airlines may result in a derogation of the Kyoto Protocol at least for the year 2012. Lastly, as a conclusion, the author shed light briefly on how the Korean aviation authorities are dealing with the EU restrictive measures.

• The Korean Journal of Air & Space Law and Policy
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• v.35 no.2
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• pp.247-280
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• 2020

For customs-free and liberalization on the trade of aircraft parts, the WTO Agreement on Trade in Civil Aircraft was separately concluded as plurilateral trade agreement at the time of launching WTO in 1995, and currently 33 countries including the United States and the EU are acceded but Korea does not. Major details of the Agreement on Trade in Civil Aircraft include product coverage, the elimination of customs duties and other charges, the prohibition of government-directed procurement of civil aircraft, the application of the Agreement on Subsides and Countervailing Measures, and the consultation on issues related to this Agreement and dispute resolution. Article 89 paragraph 6 of the current Customs Act was newly established on December 31, 2018, and the tariff reduction rate for imports of aircraft parts will be reduced in stages from May 2019 and the tariff reduction system will be abolished in 2026. Accordingly, looking at the impact of the Agreement on Trade in Civil Aircraft on the aviation industry, first, as for the impact on the air transport industry, an tariff allotment of the domestic air transport industry is expected to reach about 160 billion won a year from 2026, and upon acceding to the Agreement on Trade in Civil Aircraft, the domestic air transport industry will be able to import aircraft parts at no tariff, so it will not have to pay 3 to 8 percent import duties. Second, as for the impact on the aviation MRO industry, if the tariff reduction system for aircraft parts is phased out or abolished in stages, overseas outsourcing costs in the engine maintenance and parts maintenance are expected to increase, and upon acceding to the Agreement on Trade in Civil Aircraft, the aviation MRO industry will be able to import aircraft parts at no tariff, so it will reduce overseas outsourcing costs. If the author proposes a policy direction for the trade liberalization of aircraft parts to ensure competitiveness of the aviation industry, first, as for the tariff reduction by the use of FTA, in order to be favored with the tariff reduction by the use of FTA, it is necessary to secure the certificate of origin from foreign traders in the United States and the EU, and to revise the provisions of Korea-Singapore and Korea-EU FTA. Second, as for the push of acceding to the Agreement on Trade in Civil Aircraft, it would be resonable to push the acceding to Agreement on Trade in Civil Aircraft for customs-free on the trade of aircraft parts, as the tariff reduction method by the use of FTA has limits. Third, as for the improvement of the tariff reduction system for aircraft parts under the Customs Act, it is expected that there will take a considerable amount of time until the acceding to the Agreement on Trade in Civil Aircraft, so separate improvement measures are needed to continue the tariff reduction system of aircraft parts under Article 89 paragraph 6 of the Customs Act. In conclusion, Korea should accede to the WTO Agreement on Trade in Civil Aircraft to create an environment in which our aviation industry can compete fairly with foreign aviation industries and ensure competitiveness by achieving customs-free and liberalization on the trade of aircraft parts.

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.2
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• pp.427-468
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• 2015

To date, we have considered the theoretical views, the standpoint of states and the discourse within the international community such as the UN Committee on the Peaceful Uses of Outer Space(COPUOS) regarding the Air/Outer Space Boundary Question which is one of the first issues of UN COPUOS established in line with marking the starting point of Outer Space Area. As above mentioned, discussions in the United Nations and among scholars of within each state regarding the delimitation issue often saw a division between those in favor of a functional approach (the functionalists) and those seeking the delineation of a boundary (the spatialists). The spatialists emphasize that the boundary between air and outer space should be delimited because the status of outer space is a type of public domain from which sovereign jurisdiction is excluded, as stated in Article 2 of Outer Space Treaty. On the contrary art. I of Chicago Convention is evidence of the acknowledgement of sovereignty over airspace existing as an international customary law, has the binding force of which exists independently of the Convention. The functionalists, backed initially by the major space powers, which viewed any boundary demarcation as possibly restricting their access to space, whether for peaceful or non-military purposes, considered it insufficient or inadequate to delimit a boundary of outer space without obvious scientific and technological evidences. Last more than 50 years there were large development in the exploration and use of outer space. But a large number states including those taking the view of a functionalist have taken on a negative attitude. As the element of location is a decisive factor for the choice of the legal regime to be applied, a purely functional approach to the regulation of activities in the space above the Earth does not offer a solution. It seems therefore to welcome the arrival of clear evidence of a growing recognition of and national practices concerning a spatial approach to the problem is gaining support both by a large number of States as well as by publicists. The search for a solution to the problem of demarcating the two different legal regimes governing the space above Earth has undoubtedly been facilitated and a number of countries including Russia have already advocated the acceptance of the lowest perigee boundary of outer space at a height of 100km. As a matter of fact the lowest perigee where space objects are still able to continue in their orbiting around the earth has already been imposed as a natural criterion for the delimitation of outer space. This delimitation of outer space has also been evidenced by the constant practice of a large number of States and their tacit consent to space activities accomplished so far at this distance and beyond it. Of course there are still numerous opposing views on the delineation of a outer space boundary by space powers like U.S.A., England, France and so on. Therefore, first of all to solve the legal issues faced by the international community in outer space activities like delimitation problem, there needs a positive and peaceful will of international cooperation. From this viewpoint, President John F. Kennedy once described the rationale behind the outer space activities in his famous "Moon speech" given at Rice University in 1962. He called upon Americans and all mankind to strive for peaceful cooperation and coexistence in our future outer space activities. And Kennedy explained, "There is no strife, ${\ldots}$ nor any international conflict in outer space as yet. But its hazards are hostile to us all: Its conquest deserves the best of all mankind, and its opportunity for peaceful cooperation may never come again." This speech seems to even present us in the contemporary era with ample suggestions for further peaceful cooperation in outer space activities including the delimitation of outer space.