• Journal of the Korean Society for Marine Environment & Energy
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• v.13 no.3
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• pp.135-150
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• 2010

At the Intergovernmental Meeting held in 1972, the London Convention was adopted to prevent marine pollution from dumping of wastes and other matter. After that, at the special meeting held at the Headquarters of the International Maritime Organization in 1996, the London Convention was revised to consider advances in technology of treatment and disposal of wastes and to reflect changes in understanding of marine environment and then the London Protocol was concluded. The London Protocol states more concrete management system for ocean dumping than the London Convention and also provides that the Meeting of Contracting Parties shall establish those procedures and mechanisms necessary to assess and promote compliance with the Protocol. With the London Protocol in force since 24 March 2006, the Meeting of Contracting Parties adopted the 'Compliance Procedures and Mechanisms (CPM) pursuant to Article 11 of the 1996 Protocol to the London Convention 1972' and established the Compliance Group in 2007. According to the CPM, members of the Compliance Group shall be nominated by Contracting Parties, based on equitable and balanced geographic representation of the five Regional Groups of the United Nations, and elected by the Meeting of Contracting Parties. In 2009, the Republic of Korea nominated a member of the Compliance Group to be subsequently elected by the Meeting of Contracting Parties with the approval of other states in Asia Group. Through the United Nations Regional Group System based on geographical identity or political affinity, Contracting Parties to the London Protocol are expected to form a voting bloc or to exchange information in meetings on the London Protocol. In this sense, it is noteworthy that the London Protocol introduced marine environmental management system for comprehensive prohibition of ocean dumping with exception of the so-called 'reverse-list' which had been earlier adopted by the 'Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992 (OSPAR)' whose contracting parties belonged to Western European and Other States Group. In recent years, the jurisdiction of London Protocol has been extended to protect and preserve the marine environment from all sources of pollution. This will make the United Nations Regional Group System play more important roles in the activities associated with the London Protocol. For this reason, this article has considered characteristics of the United Nations Regional Group System and has analyzed influences of this Regional Group System in meetings on the London Protocol. This could provide preliminary information for the Republic of Korea to give due consideration to the United Nations Regional Group System on the activities associated with the London Protocol.

• The Korean Journal of Air & Space Law and Policy
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• v.33 no.1
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• pp.3-43
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• 2018

Auf die ganze Welt macht unbemannte $Flugger{\ddot{a}}te$(sog.Drohnen) in vielen Bereichen rasch Fortschritte und Anwendungen gezeigt. Nachdem ferngesteuerte Drohnen $urspr{\ddot{u}}nglich$ $prim{\ddot{a}}r$ $f{\ddot{u}}r$ $milit{\ddot{a}}rische$ Zwecke entwickelt wurden, $erh{\ddot{o}}cht$ sich derzeit ihre zivile Nutzung sowohl im Freizeit- als auch im Dienstleistungsbereich(Paketdrohnen, Drohnen-taxi) stetig. Mit der vermehrten Drohnennutzung steigen allerdings auch die damit verbundenen Risiken und Herausforderungen. In Zusammenhang damit stellt sich dann die Frage, ob $gegenw{\ddot{a}}rtige$ Vorschriften im Bereich von Luftrecht zurecht gekommen sind. Es sieht sich gerade der zwei Schwerpunkt $gegen{\ddot{u}}ber$. Erstens kann $Passagierebef{\ddot{o}}rderung$ mit unbemanntem Luftfahrzeug(mehr als 150kg) im $gegenw{\ddot{a}}ritigen$ Luftrecht keine Anwendung finden. Denn das kor. Luftsicherheitsgesetz und sein Durchsetzungsverordnung definieren die Terminologie von unbemannten Luftfahrzeugen und unbemannten $Flugger{\ddot{a}}te$ als "wenn eine Person nicht an Bord geht und ferngesteuert wird". Also soll Drohne nach dieser gesetzlichen Definition nur "ohne Person" geflogen werden. Das besagt ohne Piloten und ohne Passagiere. Zweitens ist unbemannte $Flugger{\ddot{a}}te$(weniger als 150kg) nicht auf Handelsgesetz anzuwenden, auf das ${\ddot{u}}ber$ Anspruchsgrundlage und Zurechnungsnorm des gewerblichen Luftverkehr geregelt ist. Der unbemannte Luftfahrzeuglieferdienst bringt nicht nur die Gefahr einer $Besch{\ddot{a}}digung$ des Frachtguts mit sich, sondern auch die Gefahr von $Bodensch{\ddot{a}}den$ durch Dritte. Gemäß ${\S}$ 896 des Handelsgesetzes ist aber die Anwendung von unbemannte $Flugger{\ddot{a}}te$(weniger als 150kg) $hierf{\ddot{u}}r$ begrenzt, weil unbemannt $Flugger{\ddot{a}}te$ $einschl{\ddot{a}}gig$ in Ultralight $Flugger{\ddot{a}}t$ ist, die im Handelsgesetz ausschließlich besteht. Technische Fortschritt und die dadurch $erm{\ddot{o}}glichten$ kommerziellen Anwendungen werden die Nachfrage nach unbemannter $Flugger{\ddot{a}}te$ wecken. Die Umsetzung der $bez{\ddot{u}}glichen$ Vorschriften sollte auch diese Entwicklung aktiv begleitet und $fr{\ddot{u}}hzeitig$ kommuniziert und erarbeitet werden, damit Hersteller und Nutzer $fr{\ddot{u}}hzeitig$ Planungssicherheit haben.

• The Korean Journal of Air & Space Law and Policy
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• v.25 no.1
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• pp.159-203
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• 2010

Together with the development of space science outer space law has become one of the most rapidly developing branches of international law. This reflects a general realization that these new activities must be subject to reasonable legal regulation if they are to serve the peaceful purposes of mankind without undue confusion and disorder. The exploration and use of outer space introduces many novel opportunities and dilemmas, and inspired insights are needed in the development of this new resource. In particular, the settlement of space law disputes is a relatively new discussion in international law. However, the significance of the settlement of space law disputes was acknowledged in various colloquia organized by legal academicians and practitioners around the world. Analysis of the dispute settlement provisions in space agreements plainly reveals the degree to which States persist to be mistrustful of any impingement to their sovereignty. They are reluctant to submit disputes to adjudication and binding arbitration, particularly when these provisions are negotiated between States which have dissimilar political, economic and social interests and demography. However, there is a slow but clear shift in this attitude as States realize the contemporary political, economic and technical pressures necessitating the lifting of the veil of State sovereignty. The development of an effective mechanism for the settlement of disputes arising in relation to the development of the exploration and exploitation of outer space has been the subject of global study by highly qualified publicists and international institutions. The 1972 Liability Convention is the space treaty with the most elaborate provisions for dispute settlement. However, it fails to ensure binding decisions. In this point, the 1998 Taipei Final Draft Convention may be a useful instrument for further consideration on whether an independent sectorialized dispute settlement mechanism should be established. Considering these circumstances it seemed essential to take legislative action to implement a system as comprehensive as the relevant legal framework are in the Law of the Sea and International Criminal Law mechanisms for dispute settlement and conflict avoidance from outer space activities.

• Korean Journal of Heritage: History & Science
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• v.53 no.2
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• pp.156-179
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• 2020

The Preservation Decree (1933) is the basic law relevant to the conservation of cultural property of colonial Chosun, and invoked clauses from the Old History Preservation Act (1897), the Historic Scenic Sites Natural Monument Preservation Act (1919), and the National Treasure Preservation Act (1929), which were all forms of Japanese Modern Cultural Heritage Law, and actually used the corresponding legal text of those laws. Thus, the fact that the Preservation Decree transplanted or imitated the Japanese Modern Cultural Heritage Law in the composition of the constitution can be proved to some extent. The main features and characteristics of the Preservation Decree are summarized below. First, in terms of preservation of cultural property, the Preservation Decree strengthened and expanded preservation beyond the existing conservation rules. In the conservation rules, the categories of cultural properties were limited to historic sites and relics, while the Preservation Decree classifies cultural properties into four categories: treasures, historic sites, scenic spots, and natural monuments. In addition, the Preservation Decree is considered to have advanced cultural property preservation law by establishing the standard for conserving cultural property, expanding the scope of cultural property, introducing explicit provisions on the restriction of ownership and the designation system for cultural property, and defining the basis for supporting the natural treasury. Second, the Preservation Decree admittedly had limitations as a colonial cultural property law. Article 1 of the Preservation Decree sets the standard of "Historic Enhancement or Example of Art" as a criteria for designating treasures. With the perspective of Japanese imperialism, this acted as a criterion for catering to cultural assets based on the governor's assimilation policy, revealing its limitations as a standard for preserving cultural assets. In addition, the Japanese imperialists asserted that the cultural property law served to reduce cultural property robbery, but the robbery and exporting of cultural assets by such means as grave robbery, trafficking, and exportation to Japan did not cease even after the Preservation Decree came into effect. This is because governors and officials who had to obey and protect the law become parties to looting and extraction of property, or the plunder and release of cultural property by the Japanese continued with their acknowledgement,. This indicates that cultural property legislation at that time did not function properly, as the governor allowed or condoned such exporting and plundering. In this way, the cultural property laws of the Japanese colonial period constituted discriminative colonial legislation which was selected and applied from the perspective of the Japanese government-general in the designation and preservation of cultural property, and the cultural property policy of Japan focused on the use of cultural assets as a means of realizing their assimilation policy. Therefore, this suggests that the cultural property legislation during the Japanese colonial period was used as a mechanism to solidify the cultural colonial rules of Chosun and to realize the assimilation policy of the Japanese government-general.

• The Korean Society of Law and Medicine
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• v.16 no.2
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• pp.55-84
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• 2015

The tuberculosis is the infectious disease. Generally, the active tuberculosis patient can infect the 10 persons for one year within the daily activities like casual conversation and singing together. The infectivity of tuberculosis can continue for a life time, and infected persons can remain at risk for developing active tuberculosis. To control this contagious disease, along with the active tuberculosis patients, non-infectious but non-compliant patients who can be infectious if their immune systems become impaired have to be managed. To control the non-complaint patients, medical treatment order should be combined with the public order. Because tuberculosis is the risk of community health, the human rights like liberty and freedom of movement can be restricted for public welfare under the article 37(2) of constitution. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated. The degree of restriction on the rights of citizens is different what methods are chosen to non-complaint patients. For example, under the directly observed therapy program, the patients and medical staffs make an appointment and meet to confirm the drug intakes according to the schedule, which is the medical treatment combined with the mildest public order. If the patients break the appointments or have the history of disobedient, the involuntary detention can obtain the legitimate cause. The Tuberculosis Prevention Act has the two step programs on this involuntary detention, The admission order (Article 15) is issued when the patients are infectious. The quarantine order (Artle 15-2) is issued when the patients are infectious and non-complaint. The legal criteria for involuntary detention are discussed and published through the international conventions and covenants. For example, World Health Organization had made guidance on human rights and involuntary detention for tuberculosis control. The restrictions should be carried out in accordance with the our law and in the legitimate objective of public interest. And the restriction should be based on scientific evidence and not imposed in an unreasonable or discriminatory manner. We define and adopt these international criteria under our constitution and legal system. Least restrictive alternative principle, proportionality principle and the individual evaluation methods are explained through the reviews of United States court decisions. Habeas Corpus Act is reviewed and adopted as the procedural due process to protect the patient rights as a citizen. Along with that, what conditions and facilities which are needed to performed quarantine order are discussed.

• Korean Journal of Heritage: History & Science
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• v.49 no.1
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• pp.166-177
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• 2016

This essay explores the problems with applying the concept of "original form" to natural heritage when it is based on originality and diachronic, historical period. It also suggests an alternative perception that the concept of "original form" can be considered based upon "integrity". First, the conceptual framework for applying the concept of "original form" falls into three types: one that centers on the time point at which heritage originated; another that respects the diachronic characteristics of the concept of "original form"; and the last that bases original form on a particular time after the heritage originated. Second, the national policy for the conservation of natural monuments and scenic sites stayed at the level of consulting the Decree on the Preservation of Treasures, Historical Remains, Scenic Sites, and Natural Monuments of Joseon, under Japanese colonial rule. And after the legal framework was established through enacting and proclaiming of the Cultural Heritage Protection Act in 1962, 564 cases have been designated as natural monuments. Third, the natural conservation movement, the first national policy for natural heritage, was initiated from the heritage field, but the Environment Ministry subsumed all nature-related policies and ever since the heritage agency (Cultural Heritage Administration) has implemented only heritage policies regarding "cultural" heritage. The present state of the coexisting policies about the natural heritage by the Environment Ministry and the Cultural Heritage Administration resulted in leading the public confused about official terms and main policy agency of natural heritage. Fourth, the difficulty of applying the concept of "original form" to natural heritage stems from the fact that natural heritage is inherently distinct from cultural heritage, which is placed at the center of the heritage policies implemented by the heritage agency. In addition, natural heritage, similarly distinct from the overall natural environment, has evolved in a way that incorporates human culture and thus diversely includes characteristics of originality, diachrony, and historical period. Under these circumstances, an incorporative, professional approach is required rather than independent approaches for each type of natural heritage. In conclusion, this essay suggests that issues related to the restoration of original conditions of natural heritage should be resolved through the application of the "integrity" concept by restoring "the characteristics of an object or a place that imbue it with meaning and value," with consideration given to efforts for alleviating logical contradictions within the concept of "original form" through the preparation of standards and guidelines for the restoration of original condition.

• The Korean Journal of Air & Space Law and Policy
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• v.33 no.2
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• pp.61-114
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• 2018

Recently airspace became a hot issue considering today's international relations. However, there was no data that could be fully explained about a legal system of korean airspace, so I looked at law and practice about korean airspace together. The nation's aviation law sector is comletely separate from those related to civil and military aircraft, at least in legal terms. The Minister of Land, Infrastructure and Transport shall carry out his/her duties with various authority granted by the "Aviation Safety Act". The nation's aviation-related content is being regulated too much by the Ministry of Land, Infrastructure and Transport's notice or regulation, and there are many things that are not well known about which clauses of the upper law are associated with. The notice should be clearly described only in detail on delegated matters. As for the airspace system, the airspace system is too complex for the public to understand, and there seems to be a gap between law and practice. Therefore, I think it would be good to reestablish a simple and practical airspace system. Airspace and aviation related tasks in the military need to be clearly understood by distinguishing between those entrusted by the Minister of Land, Infrastructure and Transport and those inherent in the military. Regarding matters entrusted by the Minister of Land, Infrastructure and Transpor, it is necessary to work closely with the Minister of Land, Infrastructure and Transport when preparing related work guidelines, and to clarify who should prepare the guidelines. Regarding airspace control as a military operation, policies or guidelines that are faithful to military doctrine on airspace control are needed.

• 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.

• The Korean Journal of Archival Studies
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• no.46
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• pp.153-187
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• 2015

This study aims to discuss issues about non-existent information of the information disclosure system and to provide alternative strategies for the issues. For the theoretical discussion it reviews the definitions and standards of non-existent information and analyzes legal aspects and statistical changes of non-existent information. Furthemore, in order to discuss a current status and problems of non-existent information at the central administrative agencies, it analyzes the cases of the non-existent information notification. According to analysis results, non-existent information status of the surveyed institutions is a total of 4,421 cases for three years and it shows the continuous increasing trend year after year. The number of institutions that have the number of non-existent information equal to the number of nondisclosures or over it reached about 40%. It means excluding non-existent information from the reasons of nondisclosure influenced disclose rates and nondisclosure rates of many agencies. In the type analysis of the non-existent information reasons, the most main reason, the case of not producing or receiving the requested information by public institutions takes over 75% among the whole reasons. The next reason is the case of collecting or processing information takes over 7-10%. This study found the operational issues, as analyzing notifications of non-existent information. The operational issues are 1) the incomplete explanation of non-existent information, 2) the unclear scope of the collection and processing, 3) the problem of the transfer processing, and 4) the problem of recording management. Therefore, this study suggested some improvements of the perspective and the technical and procedural aspects. First, information disclosure issues including non-existent information are to be understood as an extension of records management. Second, disclosure service should improve overall based on advanced understanding. Third, the management procedures of non-existent information should be improved. Fourth, specific guidelines for handling non-existent information should be developed.

• Journal of Legislation Research
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• no.55
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• pp.167-191
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• 2018

Despite international cooperation, piracy has not yet been eradicated in major waters around the world. From the perspective of South Korea, which is absolutely dependent on exporting and importing, it's a lifeline for us to secure safe maritime traffic so it is a situation we have to be vigilant about maritime safety and security. However, criminal law on punishment of piracy is still insufficient and legislative consideration is needed. Since pirates are regarded as enemies of humankind, all nations can punish pirates regardless of their damage. The international community has done its best in cooperation from hundreds of years ago to secure maritime trade through this universal jurisdiction and marine transportation in international waters which is an essential space for military activities, particularly in the Gulf of Aden, the advanced nations have dispatched fleets to combat maritime security threats through joint operations to crack down on Somali pirates. Even if universal jurisdiction is allowed for piracy in accordance with the International Convention on Human Rights and the United Nations Convention on the Law of the Sea, it is difficult to effectively deal with piracy if it not fully complied with a domestic legal system for this purpose or is stipulated as different from international regulations. In other words, universal jurisdiction corresponding to international norms and constitution of piracy should be defined in criminal law in accordance with criminal statutory law. If the punishment of pirates by unreasonably applying our criminal law without prejudice to such work can lead to diplomatic disputes in violation of the Universal Declaration of Human Rights or other international norms. In South Korea, there is no provision to explicitly prescribe piracy as a crime, but punish similar acts like piracy in criminal law and maritime safety law. However, there is a limit to effective piracy punishment because we are not fully involved in internationally accepted piracy. In this study, we critically examine the proposals of the constitutional elements of piracy, propose the legislative direction, and insist on the introduction of globalism to pirate sins.