• The Korean Journal of Air & Space Law and Policy
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• v.18
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• pp.9-39
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• 2003

The rule of the Warsaw Convention of 1929 are well known and still being all over the world. The Warsaw Convention is undoubtedly the most widely accepted private international air law treaty with some 140 countries. In the international legal system for air transportation, the Warsaw Convention has played a major role for more than half century, and has been revised many times in consideration of the rapid developments of air high technology, changes of social and economic circumstances, need for the protection of passengers. Some amendments became effective, but others are still not effective. As a result, the whole international legal system for air transportation is at past so complicated and tangled. However, the 'Warsaw system' consists of the Warsaw Convention of 1929 the Guadalajara Convention of 1961, a supplementary convention, and the following six protocols: (1) the Hague Protocol of 1955, (2) the Guatemala Protocol of 1971, (3) the Montreal Additional Protocols, No.1, (4) the Montreal Additional Protocol No.2, (5) the Montreal Additional Protocol No.3, and (6) the Montreal Additional Protocol No.4. of 1975. As a fundamental principle of the air carrier's liability in the international convention and protocols, for instance in the Warsaw Convention and the Hague Protocol, the principle of limited liability and a presumed fault system has been adopted. Subsequently, the Montreal Inter-carrier Agreement of 1966, the Guatemala City Protocol, the Montreal Additional Protocol No.3, and the Montreal Additional Protocol No. 4 of 1975 maintained the limited liability, but substituted the presumed liability system by an absolute liability, that is, strict liability system. The Warsaw System, which sets relatively low compensation limits for victims of aircraft accidents and regulates the limited liability for death and injury of air passengers, had become increasingly outdated. Japanese Airlines and Inter-carrier Agreement of International Air Transport Association in 1995 has been adopted the unlimited liability of air carrier in international flight. The IATA Inter-Carrier Agreement, in which airlines in international air transportation agree to waive the limit of damages, was long and hard in coming, but it was remarkable achievement given the political and economic realities of the world. IATA deserves enormous credit for bringing it about. The Warsaw System is controversial and questionable. In order to find rational solution to disputes between nations which adopted differing liability systems in international air transportation, we need to reform the liability of air carriers the 'Warsaw system' and fundamentally, to unify the liability system among the nations. The International Civil Aviation Organization(ICAO) will therefore reinforce its efforts to further promote a legal environment that adequately reflects the public interest and the needs of the parties involved. The ICAO Study Group met in April, 1998, together with the Drafting Committee. The time between the "Special Group on the Modernization and Consolidation of the 'Warsaw system'(SGMW)" and the Diplomatic Conference must be actively utilized to arrange for profound studies of the outstanding issues and for wide international consultations with a view to narrowing the scope of differences and preparing for a global international consensus. From 11 to 28 May 1999 the ICAO Headquarters at Montreal hosted a Diplomatic Conference convened to consider, with a view to adoption, a draft Convention intended to modernize and to integrate replace the instruments of the Warsaw system. The Council of ICAO convened this Conference under the Procedure for the Adoption of International Conventions. Some 525 participants from 121 Contracting States of ICAO attended, one non-contracting State, 11 observer delegations from international organizations, a total of 544 registered participants took part in the historic three-week conference which began on 10 May. The Conference was a success since it adopted a new Convention for the Unification of Certain Rules for International Carriage by Air. The 1999 Montreal Convention, created and signed by representatives of 52 countries at an international conference convened by ICAO at Montreal on May 28, 1999, came into effect on November 4, 2003. Representatives of 30 countries have now formally ratified the Convention under their respective national procedures and ratification of the United States, which was the 30th country to ratify, took place on September 5, 2003. Under Article 53.6 of the Montreal Convention, it enters into force on the 60th day following the deposit of the 30th instrument of ratification or acceptation. The United States' ratification was deposited with ICAO on September 5, 2003. The ICAO have succeeded in modernizing and consolidating a 70-year old system of international instruments of private international law into one legal instrument that will provide, for years to come, an adequate level of compensation for those involved in international aircraft accidents. An international diplomatic conference on air law by ICAO of 1999 succeeded in adopting a new regime for air carrier liability, replacing the Warsaw Convention and five other related legal instruments with a single convention that provided for unlimited liability in relation to passengers. Victims of international air accidents and their families will be better protected and compensated under the new Montreal Convention, which modernizes and consolidates a seventy-five year old system of international instruments of private international law into one legal instrument. A major feature of the new legal instrument is the concept of unlimited liability. Whereas the Warsaw Convention set a limit of 125,000 Gold Francs (approximately US$ 8,300) in case of death or injury to passengers, the Montreal Convention introduces a two-tier system. The first tier includes strict liability up to l00,000 Special Drawing Rights (SDR: approximately US$ 135,000), irrespective of a carrier's fault. The second tier is based on presumption of fault of a carrier and has no limit of liability. The 1999 Montreal Convention also includes the following main elements; 1. In cases of aircraft accidents, air carriers are called upon to provide advance payments, without delay, to assist entitled persons in meeting immediate economic needs; the amount of this initial payment will be subject to national law and will be deductable from the final settlement; 2. Air carriers must submit proof of insurance, thereby ensuring the availability of financial resources in cases of automatic payments or litigation; 3. The legal action for damages resulting from the death or injury of a passenger may be filed in the country where, at the time of the accident, the passenger had his or her principal and permanent residence, subject to certain conditions. The new Montreal Convention of 1999 included the 5th jurisdiction - the place of residence of the claimant. The acceptance of the 5th jurisdiction is a diplomatic victory for the US and it can be realistically expected that claimants' lawyers will use every opportunity to file the claim in the US jurisdiction - it brings advantages in the liberal system of discovery, much wider scope of compensable non-economic damages than anywhere else in the world and the jury system prone to very generous awards. 4. The facilitation in the recovery of damages without the need for lengthy litigation, and simplification and modernization of documentation related to passengers. In developing this new Montreal Convention, we were able to reach a delicate balance between the needs and interests of all partners in international civil aviation, States, the travelling public, air carriers and the transport industry. Unlike the Warsaw Convention, the threshold of l00,000 SDR specified by the Montreal Convention, as well as remaining liability limits in relation to air passengers and delay, are subject to periodic review and may be revised once every five years. The primary aim of unification of private law as well as the new Montreal Convention is not only to remove or to minimize the conflict of laws but also to avoid conflict of jurisdictions. In order to find a rational solution to disputes between nations which have adopted differing liability systems in international air transport, we need fundamentally to reform their countries's domestic air law based on the new Montreal Convention. It is a desirable and necessary for us to ratify rapidly the new Montreal Convention by the contracting states of lCAO including the Republic of Korea. According to the Korean and Japanese ideas, airlines should not only pay compensation to passengers immediately after the accident, but also the so-called 'condolence' money to the next of kin. Condolence money is a gift to help a dead person's spirit in the hereafter : it is given on account of the grief and sorrow suffered by the next of kin, and it has risen considerably over the years. The total amount of the Korean and Japanese claims in the case of death is calculated on the basis of the loss of earned income, funeral expenses and material demage (baggage etc.), plus condolence money. The economic and social change will be occurred continuously after conclusion of the new Montreal Convention. In addition, the real value of life and human right will be enhanced substantially. The amount of compensation for damage caused by aircraft accident has increased in dollar amount as well as in volume. All air carrier's liability should extend to loss of expectation of leisure activities, as well as to damage to property, and mental and physical injuries. When victims are not satisfied with the amount of the compensation for damage caused by aircraft accident for which an airline corporation is liable under the current liability system. I also would like to propose my opinion that it is reasonable and necessary for us to interpret broadly the meaning of the bodily injury on Article 17 of the new Montreal Convention so as to be included the mental injury and condolence. Furthermore, Korea and Japan has not existed the Air Transport Act regulated the civil liability of air carrier such as Air Transport Act (Luftverkehrsgestz) in Germany. It is necessary for us to enact "the Korean Air Transport Contract Act (provisional title)" in order to regulate the civil liability of air carrier including the protection of the victims and injured persons caused by aircraft accident.

• The Korean Journal of Air & Space Law and Policy
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• v.32 no.1
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• pp.177-200
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• 2017

This writer have thus far reviewed the civil and criminal obligations of the directors of a parent company that sponsored financially troubled affiliates. What was discussed here applies to logistics companies in the same manner. Hanjin Shipping cannot expect its parent company, Korean Air to prop it up financially. If such financial aid is offered without any collateral, under Korean criminal law, the directors of the parent company bears the burden of civil and criminal responsibility. One way to get around this is to secure fairness in terms of the process and the content of aid. Fairness in terms of process refers to the board of directors making public all information and approving such aid. Fairness in terms of content refers to impartial transactions that block out any possibilities of the chairman of the corporate group acting in his private interest. In the case of Korean Air bailing out Hanjin, the meeting of board of directors were held five times and a thorough review was conducted on the risks involved in the loans being repaid or not. After the review, measures to guard against undesirable scenarios were established before finally deciding on bailing out Hanjin. As such, there are no issues. In terms of the fairness of content, too, there were practically no room for the majority shareholder or controlling shareholder to pocket profits at the expense of the company. This is because the continued aid offered to a financially troubled company (i.e. Hanjin Shipping) was a posing a burden to even the controlling shareholder. This writer argues that the concept of the interest of the entire corporate group needs to be recognized. That is, it must be recognized that the relationship of control and being controlled between parent company and affiliate company, or between affiliate companies serves a practical benefit to the ongoing concern and growth of the group and is therefore just. Moreover, the corporate group and its affiliates, as well as their directors and management must recognize that they have an obligation to prioritize the interests of the corporate group ahead of the interests of the company that they are directly associated with. As such, even if Korean Air offered a loan to Hanjin Shipping without collateral, the act cannot be treated as an offense to law, nor can the directors be accused of damages that they bear the responsibility of compensating under civil law.

• Journal of Distribution Science
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• v.10 no.2
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• pp.29-41
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• 2012

This paper undertakes a conceptual review of transaction cost to broaden the understanding of the transaction cost analysis (TCA) approach. More than 40 years have passed since Coase's fundamental insight that transaction, coordination, and contracting costs must be considered explicitly in explaining the extent of vertical integration. Coase (1937) forced economists to identify previously neglected constraints on the trading process to foster efficient intrafirm, rather than interfirm, transactions. The transaction cost approach to economic organization study regards transactions as the basic units of analysis and holds that understanding transaction cost economy is central to organizational study. The approach applies to determining efficient boundaries, as between firms and markets, and to internal transaction organization, including employment relations design. TCA, developed principally by Oliver Williamson (1975,1979,1981a) blends institutional economics, organizational theory, and contract law. Further progress in transaction costs research awaits the identification of critical dimensions in which transaction costs differ and an examination of the economizing properties of alternative institutional modes for organizing transactions. The crucial investment distinction is: To what degree are transaction-specific (non-marketable) expenses incurred? Unspecialized items pose few hazards, since buyers can turn toalternative sources, and suppliers can sell output intended for one order to other buyers. Non-marketability problems arise when specific parties' identities have important cost-bearing consequences. Transactions of this kind are labeled idiosyncratic. The summarized results of the review are as follows. First, firms' distribution decisions often prompt examination of the make-or-buy question: Should a marketing activity be performed within the organization by company employees or contracted to an external agent? Second, manufacturers introducing an industrial product to a foreign market face a difficult decision. Should the product be marketed primarily by captive agents (the company sales force and distribution division) or independent intermediaries (outside sales agents and distribution)? Third, the authors develop a theoretical extension to the basic transaction cost model by combining insights from various theories with the TCA approach. Fourth, other such extensions are likely required for the general model to be applied to different channel situations. It is naive to assume the basic model appliesacross markedly different channel contexts without modifications and extensions. Although this study contributes to scholastic research, it is limited by several factors. First, the theoretical perspective of TCA has attracted considerable recent interest in the area of marketing channels. The analysis aims to match the properties of efficient governance structures with the attributes of the transaction. Second, empirical evidence about TCA's basic propositions is sketchy. Apart from Anderson's (1985) study of the vertical integration of the selling function and John's (1984) study of opportunism by franchised dealers, virtually no marketing studies involving the constructs implicated in the analysis have been reported. We hope, therefore, that further research will clarify distinctions between the different aspects of specific assets. Another important line of future research is the integration of efficiency-oriented TCA with organizational approaches that emphasize specific assets' conceptual definition and industry structure. Finally, research of transaction costs, uncertainty, opportunism, and switching costs is critical to future study.

• Korean Journal of Heritage: History & Science
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• v.50 no.4
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• pp.4-19
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• 2017

Kim Jeong-gi (pen-name: Changsan, Mar. 31, 1930 - Aug. 26, 2015) made a major breakthrough in the history of cultural property excavation in Korea: In 1959, he began to develop an interest in cultural heritage after starting work as an employee of the National Museum of Korea. For about thirty years until he retired from the National Research Institute of Cultural Heritage in 1987, he devoted his life to the excavation of our country's historical relics and artifacts and compiled countless data about them. He continued striving to identify the unique value and meaning of our cultural heritage in universities and excavation organizations until he passed away in 2015. Changsan spearheaded all of Korea's monumental archeological excavations and research. He is widely known at home and abroad as a scholar of Korean archeology, particularly in the early years of its existence as an academic discipline. As such, he has had a considerable influence on the development of Korean archeology. Although his multiple activities and roles are meaningful in terms of the country's archaeological history, there are limits to his contributions nevertheless. The Deoksugung Palace period (1955-1972), when the National Museum of Korea was situated in Deoksugung Palace, is considered to be a time of great significance for Korean archeology, as relics with diverse characteristics were researched during this period. Changsan actively participated in archeological surveys of prehistoric shell mounds and dwellings, conducted surveys of historical relics, measured many historical sites, and took charge of photographing and drawing such relics. He put to good use all the excavation techniques that he had learned in Japan, while his countrywide archaeological surveys are highly regarded in terms of academic history as well. What particularly sets his perspectives apart in archaeological terms is the fact that he raised the possibility of underwater tombs in ancient times, and also coined the term "Haemi Culture" as part of a theory of local culture aimed at furthering understanding of Bronze Age cultures in Korea. His input was simply breathtaking. In 1969, the National Research Institute of Cultural Heritage (NRICH) was founded and Changsan was appointed as its head. Despite the many difficulties he faced in running the institute with limited financial and human resources, he gave everything he had to research and field studies of the brilliant cultural heritages that Korea has preserved for so long. Changsan succeeded in restoring Bulguksa Temple, and followed this up with the successful excavation of the Cheonmachong Tomb and the Hwangnamdaechong Tomb in Gyeongju. He then explored the Hwangnyongsa Temple site, Bunhwangsa Temple, and the Mireuksa Temple site in order to systematically evaluate the Buddhist culture and structures of the Three Kingdoms Period. We can safely say that the large excavation projects that he organized and carried out at that time not only laid the foundations for Korean archeology but also made significant contributions to studies in related fields. Above all, in terms of the developmental process of Korean archeology, the achievements he generated with his exceptional passion during the period are almost too numerous to mention, but they include his systematization of various excavation methods, cultivation of archaeologists, popularization of archeological excavations, formalization of survey records, and promotion of data disclosure. On the other hand, although this "Excavation King" devoted himself to excavations, kept precise records, and paid keen attention to every detail, he failed to overcome the limitations of his era in the process of defining the nature of cultural remains and interpreting historical sites and structures. Despite his many roles in Korean archeology, the fact that he left behind a controversy over the identity of the occupant of the Hwangnamdaechong Tomb remains a sore spot in his otherwise perfect reputation.

• Korean Journal of Heritage: History & Science
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• v.52 no.2
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• pp.80-105
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• 2019

With the increasing complexity and irregularity of disaster types, the need for cultural asset preservation and management from a proactive perspective has increased as a number of cultural properties have been destroyed and damaged by various natural and humanistic factors. In consideration of these circumstances, the Cultural Heritage Administration enacted an Act in December 2005 to enforce the regular commission of surveys for the systematic preservation and management of cultural assets, and through a recent revision of this Act, the investigation cycle has been reduced from five to three years, and the object of regular inspections has been expanded to cover registered cultural properties. According to the ordinance, a periodic survey of city- or province-designated heritage is to be carried out mainly by metropolitan and provincial governments. The Seoul Metropolitan Government prepared a legal basis for commissioning regular surveys under the Seoul Special City Cultural Properties Protection Ordinance 2008 and, in recognition of the importance of preventive management due to the large number of cultural assets located in the city center and the high demand for visits, conducted regular surveys of the entire city-designated cultural assets from 2016 to 2018. Upon the first survey being completed, it was considered necessary to review the policy effectiveness of the system and to conduct a comprehensive review of the results of the regular surveys that had been carried out to enhance the management of cultural assets. Therefore, the present study examined the comprehensive management status of the cultural assets designated by the Seoul Metropolitan Government for three years (2016-2018), assessing the performance and identifying limitations. Additionally, ways to improve it were sought, and a DB establishment plan for the establishment of an integrated management system under the auspices of the Seoul Metropolitan Government was proposed. Specifically, survey forms were administered under the Guidelines for the Operation of Periodic Surveys of National Designated Cultural Assets; however, the types of survey forms were reclassified and further subdivided in consideration of the characteristics of the designated cultural assets, and manuals were developed for consistent and specific information technologies in respect of the scope and manner of the survey. Based on this analysis, it was confirmed that 401 cases (77.0%) out of 521 cases were generally well preserved; however, 102 cases (19.6%) were found to require special measures such as attention, precision diagnosis, and repair. Meanwhile, there were 18 cases (3.4%) of unsurveyed cultural assets. These were inaccessible to the investigation at this time due to reasons such as unknown location or closure to the public. Regarding the specific types of cultural assets, among a total of 171 cultural real estate properties, 63 cases (36.8%) of structural damage were caused by the failure and elimination of members, and 73 cases (42.7%) of surface area damage were the result of biological damage. Almost all plants and geological earth and scenic spots were well preserved. In the case of movable cultural assets, 25 cases (7.1%) among 350 cases were found to have changed location, and structural damage and surface area damage was found according to specific material properties, excluding ceramics. In particular, papers, textiles, and leather goods, with material properties that are vulnerable to damage, were found to have greater damage than those of other materials because they were owned and managed by individuals and temples. Thus, it has been confirmed that more proactive management is needed. Accordingly, an action plan for the comprehensive preservation and management status check shall be developed according to management status and urgency, and the project promotion plan and the focus management target should be selected and managed first. In particular, concerning movable cultural assets, there have been some cases in which new locations have gone unreported after changes in ownership (management); therefore, a new system is required to strengthen the obligation to report changes in ownership (management) or location. Based on the current status diagnosis and improvement measures, it is expected that the foundation of a proactive and efficient cultural asset management system can be realized through the establishment of an effective mid- to long-term database of the integrated management system pursued by the Seoul Metropolitan Government.