• 한국항공운항학회:학술대회논문집
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• 2006.11a
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• pp.8-16
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• 2006

• Proceedings of the Korea Contents Association Conference
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• 2017.05a
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• pp.173-174
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• 2017

우리 대법원은 2015년 링크에 대해서 저작권의 침해가 성립할 수 없다는 취지의 판결을 내렸고 2016년에는 지방법원에서 임베디드 링크의 경우에는 저작권의 직접침해를 구성할 수 있다는 취지의 판결을 내린바가 있다. 이에 앞서서 유럽사법재판소는 링크의 저작권 침해와 관련된 3개의 판결을 내린바가 있다. 물론 유럽의 저작권 논리를 우리나라에 그대로 적용하기에는 무리가 있지만 우리나라에서 링크를 통한 저작권침해를 규제하는데 일정 부분 도움을 줄 수는 있을 것이다. 그래서 본 논문에서는 유럽사법재판소의 판결들을 소개하고 우리나라에 적용여부를 알아보도록 하겠다.

• Journal of the Korean BIBLIA Society for library and Information Science
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• v.26 no.3
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• pp.151-175
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• 2015

The study aims to discuss on legal prospects of digital collections' fair use through an analysis of treaties and legislations domestic and international. Based on analysis of leading researches and literature, it discusses legal principles of fair use and defines digital collections' concept and types. For understanding the actual legal system on fair use, limitations and exceptions of copyrights which are presented in treaties, such as 'Berne Convention for the Protection of Literary and Artistic Works' and'Copyright Convention', each nation's laws, and judicial precedents. Especially, a legal dispute between 'Technische $Universit{\ddot{a}}t$ Darmstadt' and Eugen Ulmer KG, which debates on library's rights for digitizing their collections without the rightholder's permission, is analyzed. As a result, this study analyzes its implications for the improvement of the existing copyright system in Korea.

• The Korean Journal of Air & Space Law and Policy
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• v.35 no.2
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• pp.3-40
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• 2020

The term "accident" in the Warsaw Convention of 1929 and the Montreal Convention of 1999, which govern carrier liability in international air transport, is an important criterion for determining carrier liability. However, because there is no explicit definition of the term in the treaty provisions, the term is largely subjected to the judgment and interpretation of the courts. Although there have been numerous changes in purpose and circumstance in the transition from the Warsaw regime to the conclusion of the Montreal Convention, there was no discussion on the concept of "accident" therefore, even after the adoption of the Montreal Convention, there is no doubt that the term is to be interpreted in the same manner as before. On this point, the United States Supreme Court's Air France v. Saks clarified the concept of "accident" and is still cited as an important precedent. Recently, the CJEU, in GN v. ZU, presented a new concept of "accident" introduced in the Montreal Convention: that "reference must be made to the ordinary meaning" in interpreting "accident" and that the term "covers all situations occurring on aboard an aircraft." Furthermore, the CJEU ruled that the term does not include the applicability of "hazards typically associated with aviation," which was controversial in previous cases. Such an interpretation can be reasonably seen as the court's expansion of the concept of "accident," with a focus on "protecting consumer interests," a core tenet of both the Montreal convention and the European Union Regulations(EC: No 889/2002). The CJEU's independent interpretation of "accident" is a departure from the Warsaw Convention and the Saks case, with their focus on "carrier protection," and instead focuses on the "passenger protection" standard of the Montreal Convention. Consequently, this expands both the court's discretion and the carrier's risk management liability. Such an interpretation by the CJEU can be said to be in line with the purpose of the Montreal Convention in terms of "passenger protection." However, there are problems to be considered in tandem with an expanded interpretation of "accident." First, there may be controversy concerning "balance" in that it focused on "passenger protection" in relation to the "equitable balance of interests" between air carriers and passengers, which is the basic purpose of the agreement. Second, huge losses are expected as many airlines fly to countries within the European Union. Third, there is now a gap in the interpretation of "accident" in Europe and the United States, which raises a question on the "unity of rules," another basic tenet of the Convention. Fourth, this interpretation of "accident" by the CJEU raises questions regarding its scope of application, as it only refers to the "hazards typically associated with aviation" and "situations occurring aboard an aircraft." In this case, the CJEU newly proposed a novel criterion for the interpretation of "accident" under the Montreal Convention. As this presents food for thought on the interpretation of "accident," it is necessary to pay close attention to any changes in court rulings in the future. In addition, it suggests that active measures be taken for passenger safety by recognizing air carriers' unlimited liability and conducting systematic reforms.

• The Korean Journal of Air & Space Law and Policy
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• v.24 no.2
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• pp.139-161
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• 2009

The idea of establishing an International Court of Air and Space Law (hereinafter referred to ICASL) is only my academic and practical opinion as first proposal in the global community. The establishment of the International Court of Air and Space Law can promote the speed and promote fairness of the trial in air and space law cases. The creation of an ICASL would lead to strengthening of the international cooperation deemed essential by the global community towards joint settlement in the transnational air and space cases, claims and would act as a catalyst for the efforts and solution on aircraft, satellite and space shuttle's accidents and cases and all manpower, information, trial and lawsuit to be centrally managed in an independent fashion to the benefit of global community. The aircraft, satellite and spacecraft's accidents attributes to the particular and different features between the road, railway and maritime's accidents. These aircraft, satellite and spacecraft's accidents have incurred many disputes between the victims and the air and space carriers in deciding on the limited or unlimited liability for compensation and the appraisal of damages caused by the aircraft's accidents, terror attack, satellite, space shuttle's accidents and space debris. This International Court of Air and Space Law could hear any claim growing out of both international air and space crash accidents and transnational accidents in which plaintiffs and defendants are from different nations. This alternative would eliminate the lack of uniformity of decisions under the air and space conventions, protocols and agreements. In addition, national courts would no longer have to apply their own choice of law analysis in choosing the applicable liability limits or un-limit for cases that do not fall under the air and space system. Thus, creation of an International Court of Air and Space Law would eliminate any disparity of damage awards among similarly situated passengers and shippers in nonmembers of air and space conventions, protocols, agreements and cases. Furthermore, I would like to explain the main items of the abovementioned Draft for the Convention or Statute of the International Court of Air and Space Law framed in comparison with the Statute of the International Court of Justice, the Statue of the International Tribunal for the Law of the Sea and the Statute of the International Criminal Court. First of all, in order to create the International Court of Air and Space Law, it is necessary for us to legislate a Draft for the Convention on the Establishment of the International Court of Air and Space Law. This Draft for the Convention must include the elected method of judges, term, duty and competence of judge, chambers, jurisdiction, hearing and judgment of the ICASL. The members of the Court shall be elected by the General Assembly and Council of the ICAO and by the General Assembly and Legal Committee of the UNCOPUOS from a list of persons nominated by the national groups in the six continent (the North American, South American, African, Oceania and Asian Continent) and two international organization such as ICAO and UNCOPUOS. The members of the Court shall be elected for nine years and may be re-elected as one time. However, I would like to propose a creation an International Court of Air and Space Law in extending jurisdiction to the International Court of Justice at the Hague to in order to decide the air and space convention‘s cases. My personal opinion is that if an International Court on Air and Space Law will be created in future, it will be settled quickly and reasonably the difficulty and complicated disputes, cases or lawsuit between the wrongdoer and victims and the injured person caused by aircraft, satellite, spacecraft's accidents or hijacker and terrorists etc. on account of deciding the standard of judgment by judges of that’s court. It is indeed a great necessary and desirable for us to make a new Draft for the Convention on a creation of the International Court of Air and Space Law to handle international air and space crash litigation. I shall propose to make a new brief Draft for the Convention on the Creation of an International Court of Air and Space Law in the near future.

• Journal of Digital Convergence
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• v.12 no.12
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• pp.13-22
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• 2014

The right to be forgotten is a world-wide issue after the decision of the European Court of Justice which accepted that right. This essay discusses about the guide lines for protecting the right to delete, a category of the right to be forgotten. I classified those guide lines as follows : (1) sensitiveness of the personal information, (2) offensiveness to reasonable and ordinary people, (3) intention of writing the article, (4) value of historical record, (5) importance of privacy comparing with right to know with time flow, (6) public figure, (7) article based on fact or opinion. To effectively protect right to be forgotten and delete, we have to consider Privacy Impact Assessment, using blind system, unification of multiple institutions, and reforming press arbitration system.

• Journal of Legislation Research
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• no.54
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• pp.303-343
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• 2018

In 2013 a new era for EU patent law system was launched. The creation of the EU patent with unitary effect and the establishment of the Unified Patent Court established a new legal framework on substantive patent protection and patent litigation in Europe. This year the EU Patent Package would become a reality. It includes a regulation on a unitary patent, a regulation on the translation regime and an international Agreement on the Unitary Patent Court. In contrast to the classical European patent, the post-grant life of unitary patent will be governed by the newly created unified patent court and it will have unitary effect. In this article, I highlight the effect of the unitary patent and the jurisdiction of the unified patent court over unitary patents (and 'traditional' patents granted under the EPC that are not opted-out) for actions in relation to patent infringement or to revocation of a European patent and to licences of right. This article explores on the one hand the relation between national patent, the classical European patent and EU patent with unitary effect and on the other hand the relation of unified patent court to the Brussels $I^{bis}$ Regulation. Particular attention is paid to the institutional changes created by the unitary patent package abd the new supplementary forum that enables the UPC to hear disputes involving defendants from third States that relate to an infringement of a European patent and give rise to damage inside as well as outside the Union. Furthermore on the perspective North-east Asia this essay examines the lessons from the experiences of EU patent package.

• The Korean Journal of Air & Space Law and Policy
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• v.4
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• pp.167-176
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• 1992

1957년에 서명된 로마조약(條約)을 처음 개정한 단일(單一)유럽법(法)이 1987년 7월 1일에 발효(發效)되었을 때 유럽공동체(共同體) 12개 회원국(會員國)들은 공동정책(共同政策)에 의거 상업(商業), 농업(農業), 운송(運送), 금융(金融) 및 기타 관련부분에 있어 단일역내시장(單一域內市場)을 형성하기로 약속했다. 물론 완전한 역내공동시장(域內共同市場)은 자유로운 운송시장(運送市場)을 전제로 한다. 따라서 EC조약(條約)은 모든 회원국(會員國)들이 서어비스의 자유에 근거하여 공동운송정책(共同運送政策)을 따를 것을 강제하고 있다. 항공운송(航空運送)에 있어서의 목표도 역시 다른 모든 경제활동의 목표와 마찬가지로 로마조약(條約)이 적용되는 공동운송정책(共同運送政策)의 일부를 구성하고 있다. 종합적인 공동체항공정책(共同體航空政策)의 작업에는 운임(運賃), 공급량(供給量), 시장진출(市場進出) 및 경쟁상(競爭上)의 일괄적인 자유화 조치 이상의 것을 내포하고 있다. 그것은 국가장벽으로 방해되지 않는 공동체(共同體)의 항공운송망(航空運送網)의 개발과 확장뿐만 아니라 경제(經濟), 안전(安全), 환경(環境) 및 사회적(社會的) 요인(要因)들 간에 합리적인 균형을 이루는 공동체항공운송정책(共同體航空運送政策)의 개발을 위한 공동항공운송정책(共同航空運送政策)의 공식화(公式化)를 요한다. 1987년의 항공(航空)에 관한 일괄입법조치, 1989년의 제 2 차 항공(航空)에 관한 일괄입법조치 및 1992년 이후로 예정된 제 3 차 일괄입법조치에 따라 EC는 초국가적(超國家的)인 항공운송(航空運送) 분야에 있어서의 개방적인 국제경쟁(國際競爭)을 본격적으로 추구하고 있다. 결국 이러한 일괄규칙은 EC와 제(第) 3 국(國)들간의 관계에 중대한 의미를 가지게 될 것이다. EC항공운송정책(航空運送政策)이 아시아 항공산업(航空産業)의 상업운선(商業運船)에 어떠한 영향을 미칠 것인가는 모든 아시아 국가들이 알아야 할 중요한 문제이다. 이론적으로 말해서, 역내공동체(域內共同體) 항공운송(航空運送)의 자유화는 아시아 국가들에 대한 치외법권적(治外法權的) 효과를 일으킬 수 있는 로마조약(條約)과 유럽사법재판소(司法裁判所)에 의해 형성된 원칙들에 필연적으로 영향을 미칠 것이다. 이와 관련하여 아시아 항공산업(航空産業)은 무차별원칙(無差別原則), 설립(設立)의 자유(自由), 서어비스의 자유(自由) 및 EEC 경쟁법(競爭法)과 같은 제(第) 3 국(國)의 국제항공운송에 영향을 미치는 일련의 새로운 원칙과 법률의 출현에 큰 관심을 갖고 있다. 실무적인 관점에서, 1992년 이후의 종합적인 공동체항공운송정책(共同體航空運送政策)의 작업에는 항공운화(航空運貨), 시장진출(市場進出), 제(第)3 및 제(第)4의 운륜자유권(運輪自由權), 복수지정(複數指定), 제(第)5의 자유(自由), 캐보타지(cabotage), 손상(損傷)(derogation), 공급량(供給量), 편수(便數), 불정기운항(不定期運航) 및 기타 부문항공기소음(部門航空機騷音), 최저(最低) 안전(安全) 및 사회적(社會的) 조치(措置), 항공종사자면허(航空從事者免許), 감항증명(堪航證明), 운항시간제도(運航時間制度), 컴퓨터 예약제도(豫約制度), 탑승거절보상의 공동최저기준(共同最低基準), 공중혼잡(空中混雜), 공항이착륙시간할당법(空港離着陸時間割當法), 공항시설(空港施設), 정부지원(政府支援 등). 이와 같은 모든 공동체항공운송정책(共同體航空運送政策)의 주요문제들은 아시아 항공산업(航空産業)에 여러 각도로 영향을 미치게 될 것이다. 위와 같은 문제들 가운데, 제(第) 3국(國) 항공사(航空社)들의 역내공동체(域內共同體) 항로(航路)의 접근, 공급량(供給量), 운임(運賃), 제(第)5의 자유(自由) 및 캐보타지가 아시아 항공산업(航空産業)에 관심이 큰 문제가 되고 있다. 아시아 항공사(航空社)들의 EEC시장(市場)에로의 상업운항(商業運航)이 다소 영향을 받게 될 것이다. 첫째, 복수(複數) 목적지(目的地) 문제이다. 둘째, 항공(航空)서어비스의 운임(運賃) 및 료솔(料率)문제이다. 셋째, 항공운송구역(航空運送區域)에서의 사업에 대한 경쟁원칙의 적용 문제이다. 넷째, 제(第)5 자유(自由) 운륜권(運輪權) 문제이다. 다섯째, 캐보타지(cabotage)문제이다. 끝으로, 유럽 항공사(航空社)들간의 합병(合倂)의 문제이다. 결론적으로 유럽공동체항공운송(共同體航空運送)의 자유화는 1993년까지 공동체(共同體) 역내(域內)와 역외(域外)의 항공운송법제(航空運送法制)의 현재의 모습을 극적으로 바꾸어 놓을 정도로 가속화(加速化)되고 있다. 한편 항공운송(航空運送)의 자유화(自由化)에 대한 EC의 제의는 대담하고 급진적이다. 반면에 그것이 아시아 항공산업(航空産業)에 미칠 영향 또한 중대하다. 의심할 여지없이 항공사(航空社)와 고객들의 이익면에서 EEC와 비(非)EEC국가들의 항공운송산업(航空運送産業)에서 더욱 경제적으로 경쟁적이 되도록 할 필요가 있다. 전세계 항공운송산업(航空運送産業) 운영(運營)의 대부분을 정부가 소유하거나 통제하는 것은 정말로 국제항공운송(國際航空運送)의 발전에 불필요한 장애를 일으킨다. 따라서 國內航空社와 전세계 항공사(航空社)들간의 이해관계의 조화를 협상하는 것이 중요하다. 아마도 아시아 항공사(航空社)들간의 지역적 협조가 미국(美國)뿐만 아니라 유럽으로 부터의 압력 증가에 대해 균형을 이루는 힘이 될 수 있을 것이다.

• Journal of the Korean Society for Aviation and Aeronautics
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• v.15 no.1
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• pp.38-53
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• 2007

In a seminal judgment of November 2002 (Case C-476/98) relating to the compatibility with Community laws of the 'nationality clause' in the 1996 amending protocol to the 1955 U.S.-German Air Services Agreement, the European Court of Justice(ECJ) decided that the provision constituted a measure of an intrinsically discriminatory nature and was thus contrary to the principle of national treatment established under Art. 52 of the EC Treaty. The Court, rejecting bluntly the German government' submissions relying on public policy grounds(Art. 56, EC Treaty), seemed content to declare and rule that the protocol provision requiring a contracting state party to ensure substantial ownership and effective control by its nationals of its designated airlines had violated the requirement of national treatment reserved for other Community Members under the salient Treaty provision. The German counterclaims against the Commission, although tantalizing not only from the perusal of the judgment but from the perspective of international air law, were nonetheless invariably correct and to the point. For such a clause has been justified to defend the 'fundamental interests of society from a serious threat' that may result from granting operating licenses or necessary technical authorizations to an airline company of a third country. Indeed, the nationality clause has been inserted in most of the liberal bilaterals to allow the parties to enforce their own national laws and regulations governing aviation safety and security. Such a clause is not targeted as a device for discriminating against the nationals of any third State. It simply acts as the minimum legal safeguards against aviation risk empowering a party to take legal control of the designated airlines. Unfortunately, the German call for the review of such a foremost objective and rationale underlying the nationality clause landed on the deaf ears of the Court which appeared quite happy not to take stock of the potential implications and consequences in its absence and of the legality under international law of the 'national treatment' requirement of Community laws. Again, while US law limits foreign shareholders to 24.9% of its airlines, the European Community limits non-EC ownership to 49%, precluding any ownership and effective control by foreign nationals of EC airlines, let alone any foreign takeover and merger. Given this, it appears inconsistent and unreasonable for the EC to demand, $vis-{\grave{a}}-vis$ a non-EC third State, national treatment for all of its Member States. The ECJ's decision was also wrongly premised on the precedence of Community laws over international law, and in particular, international air law. It simply is another form of asserting and enforcing de facto extraterritorial application of Community laws to a non-EC third country. Again, the ruling runs counter to an established rule of international law that a treaty does not, as a matter of principle, create either obligations or rights for a third State. Aside from the legal problems, the 'national treatment' may not be economically justified either, in light of the free-rider problem and resulting externalities or inefficiency. On the strength of international law and economics, therefore, airlines of Community Members other than the designated German and U.S. air carriers are neither eligible for traffic rights, nor entitled to operate between or 'free-ride' on the U.S. and German points. All in all and in all fairness, the European Court's ruling was nothing short of an outright condemnation of established rules and principles of international law and international air law. Nor is the national treatment requirement justified by the economic logic of deregulation or liberalization of aviation markets. Nor has the requirement much to do with fair competition and increased efficiency.

• The Korean Journal of Air & Space Law and Policy
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• v.35 no.2
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• pp.137-168
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• 2020

Air passengers may be compensated for damages based on the above agreement when the passenger suffers an accident to the extent that they are recognized as an accident under Article 17 of the Montreal Convention in 1999. If a flight or cabin crew and passengers both undergo an accident, passengers are subjected to compensation under the Montreal Convention however flight cabin crews will be compensated by the Labor Law, which is the governing law in the labor contract with the airline. The flight or cabin crew boarding the aircraft work is on a work contract, not a passenger transport contract. Therefore, if the flight or cabin crew on the aircraft is injured due to an accident, and the air carrier is liable for default due to a labor contract, the Labor Law, workers or survivors claim damages due to illegal acts against the employer. In which case, civil law will apply. In this regard, if a Chinese cabin crew working for a Chinese airline dies due to an accident in the Republic of Korea, whether the family of the deceased claims damages against the Chinese airline or not has international court jurisdiction in the Republic of Korea, which is the place of tort. We examined whether it is the law of the Republic of Korea or whether it's the Chinese law, the law applicable to the work contract, is applied. Also, Seoul District Court 1995.5.18. The sentence 94A 14144 was found that if the injured crew during the flight work was not satisfied with the insurance compensation under the Labor Standards Act and the Industrial Accident Compensation Insurance Act, he could claime to damage under the civil law against an air carrier or third parties responsible for the accident. This law case shows that you can claim a civil damage as a cause. In case of death due to an existing illness while on the way to work, the Korea Workers'Compensation and Welfare Service did not recognize the death of the deceased as an occupational accident, and the trial was canceled by the parents of the deceased for the survivor's benefit and funeral expenses. (Seoul Administrative Court 2017.8. 31. Although the sentence was judged as an occupational disaster in 2016, the 2016 8816 Decision), it was defeated in the appeals court (Seoul High Court 2018.7.19.Sentence 2017 No. 74186) and I criticized the judgment of the appeal by analyzing the deceased's disease and related the cause of it to workload. Sometimes, a flight or cabin crew is on board not for the flight duty such as transferring to another flight or returning to the home base or lay-over place after their scheduled flight, this is called "Deadheading". If the crew who is not considered the same as a passenger, but is not on duty, is injured in an accident, does the crew claim compensation for damages under the labor contract or whether the Montreal Convention is applied to the passenger. In conjunction with the discussion, there was a similar case, In re Mexico City Aircrash of October 31, 1979, 708 F.2d 400 (9th Cir. 1983), Demanes v. United Airlines, 348 F.Supp. 13 (C.D.Cal. 1972), Sulewski v. Federal Express Corp., 749 F.Supp. 506 (S.D.N.Y. 1990) and reviewed by the European Court of Justice (CJEU) at Wucher Helicopter GmbH and Euro-Aviation Versicherungs AG v. After examining several acts in several countries it's undeniably crucial to clearly understand the definition of "passenger" as stated in the Fridolin Santer case.