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'Open Skies' Agreements and Access to the 'Single' European Sky;Legal and Economic Problems with the European Court of Justice's Judgment in 'Commission v. Germany'(2002) Striking Down the 'Nationality Clause' in the U.S.-German Agreement (항공(航空) 자유화(自由化)와 '단일(單一)' 유럽항공시장(航空市場) 접근(接近);유럽사법재판소(司法裁判所)의 미(美) ${\cdot}$ 독(獨) 항공운수협정(航空運輸協定)상 '국적요건(國籍要件)' 조항(條項)의 공동체법(共同體法)상 '내국민대우(內國民待遇)' 규정 위반(違反) 관련 '집행위원회(執行委員會) 대(對) 독일연방(獨逸聯邦)' 사건 판결(判決)(2002)의 문제점을 중심으로)

  • Park, Hyun-Jin
    • 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.

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American Culture at the Crossroad : Debates over NEA(National Endowments for the Arts) (미국 문화, 그 기로에 서서 - NEA(국립예술진흥기금)를 둘러싼 논쟁 중심으로)

  • Kim, Jin-A
    • The Journal of Art Theory & Practice
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    • no.4
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    • pp.33-56
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    • 2006
  • The cultural debates between conservatives and liberals at the end of the 1980s and in the early 1990s were termed as "culture wars." The "culture wars" involved a diverse range of controversial issues, such as the introduction of multicultural curricula in educational institutions, prayers in schools, whether to allow gays to serve openly in the military, and whether abortion should be permitted. The most heated debates of the "culture wars" regarding art raged over the NEA and the question of whether Andres Serrano's works should have been publicly funded, in addition to the exhibition "Robert Mapplethorpe: The Perfect Moment" which were charged as projecting "obscene" or "blasphemous" images. This paper examines the development of culture wars in art and focuses on several issues invoked by the NEA debates. However, it is not a detailed chronological investigation. Rather it pays attention to the several phases of the debates, analyzing and criticizing the clashes of the political and esthetical points of views between conservatives and liberals. How could NEA funding, a mere fraction of the federal budget, have become so critical for both sides(conservative and liberal), for politicians and artists' groups, and for academics and the general public? The art community was astounded by this chain of events; artists personally reviled, exhibitions withdrawn and under attack, the NEA budget threatened, all because of a few images. For conservative politicians, the NEA debate was not only a battle over the public funding of art, but a war over a larger social agenda, a war for "American values and cultures"based on the family, Christianity, the English language, and patriarchy. Conservative politicians argued the question was not one of "censorship" but of "sponsorship," since the NEA charter committed it to "helping museums better serve the citizens of the United States."Liberals and art communities argued that the attempt to restrict NEA funding violated the First Amendment rights of artists, namely "free speeches." "No matter how divided individuals are on matters of taste," Arthur C. Danto wrote, "freedom is in the interest of every citizen." The interesting phase is that both sides are actually borrowing one another's point of view when they are accompanied by art criticism. Kramer, representative of conservative art critic, objected the invasion of political contents or values in art, and struggled to keep art's own realm by promoting pure aesthetic values such as quality and beauty. But, when he talked about Mapplethorpe's works, he advocated political and ethical values. By contrast, art experts who argued for Mapplethorpe's works in the Cincinnati trial defended his work, ironically by ignoring its manifest sexual metaphor or content although they believed that the issues of AIDS and homosexuality in his work were to be freely expressed in the art form. They adopted a formalistic approach, for example, by comparing a child nude with putti, a traditional child-angel icon. For a while, NEA debates made art institutions, whether consciously or unconsciously, exert self-censorship, yet at the same time they were also producing positive aspects. To the majority of people, art was still regarded as belonging to the pure aesthetic realm away from political, economical, and social ones. These debates, however, were expanding the very perspective on the notion of what is art and of how art is produced, raising questions on art appreciation, representation, and power. The interesting fact remains: had the works not been swiped in NEA debates, could the Serrano's or Mapplethorpe's images gain the extent of power and acceptance that it has today?

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Canadian Public and Stakeholder Engagement Approach to a Spent Nuclear Fuel Management (사용후핵연료 관리를 위한 캐나다 공론화 방안)

  • Hwang, Yong-Soo;Kim, Youn-Ok;Whang, Joo-Ho
    • Journal of Nuclear Fuel Cycle and Waste Technology(JNFCWT)
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    • v.6 no.3
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    • pp.179-187
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    • 2008
  • After Canada has struggled with a radioactive waste problem over for 20 years, the Canadian government finally found out that its approach by far has been lack of social acceptance, and needed a program such as public and stakeholder engagement (PSE) which involves the public in decision-making process. Therefore, the government made a special law, called Nuclear Fuel Waste Act (NFWA), to search for an appropriate nuclear waste management approach. NFWA laid out three possible approaches which were already prepared in advance by a nuclear expert group, and required Nuclear Waste Management Organization (NWMO) to be established to report a recommendation as to which of the proposed approaches should be adopted. However, NFWA allowed NWMO to consider additional management approach if the other three were not acceptable enough. Thus, NWMO studied and created a fourth management approach after it had undertaken an comparison of the benefits, risks and costs of each management approach: Adaptive Phased Management. This approach was intended to enable the implementers to accept any technological advancement or changes even in the middle of the implementation of the plan. The Canadian PSE case well shows that technological R&D are deeply connected with social acceptance. Even though the developments and technological advancement are carried out by the scientists and experts, but it is important to collect the public opinion by involving them to the decision-making process in order to achieve objective validity on the R&D programs. Moreover, in an effort to ensure the principles such as fairness, public health and safety, security, and adoptability, NWMO tried to make those abstract ideas more specific and help the public understand the meaning of each concept more in detail. Also, they utilized a variety of communication methods from face-to-face meeting to e-dialogue to encourage people to participate in the program as much as possible. Given the fact that Korea has been also having a hard time in dealing with spent nuclear fuel management, all of these efforts that Canada has made with a PSE program would give good lessons and implications to the Korean case. In conclusion, as a deliberative participation program, PSE could be a possible breakthrough approach for the Korean spent nuclear fuel management.

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A Study on the Liability for Third Party's Damage on the Time Charter-parties (정기용선계약에서 제3자 화물손해 책임에 관한 연구)

  • Shin, Hak-Sung
    • International Commerce and Information Review
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    • v.15 no.2
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    • pp.285-313
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    • 2013
  • By the revision of the Commercial Code of Korea in 1991 and 2007, some provisions for the regulation of Time Charterparty have been introduced into our own maritime law system. But, those provisions are in their nature mainly the reproduction of the provisions prescribed in the standard forms of time charterparty which are widely used, such as BALTIME Charter and NYPE Form, and the subject matters of their regulation are restrictive, so that the applicability of the provisions is not desirable. The cargo is lost or damaged, the cargo owner should seek compensation form, or sue, the carrier as, traditionally, under the COGSA, the cargo carrier is responsible for loss of damage of cargo. However, it is difficult to determine who is the responsible carrier under charters. There is no test to determine the carrier, but the courts in every country generally consider the bill of lading. Although the master has general authority to sign bills of lading on behalf of the shipowner, he can also sign bills of lading for, and on behalf of, the charterer. In this case, the charter is considered the carrier. Furthermore, the charterer is authorized to contract with third parties on behalf of the shipowner and, as such, the responsible carrier is the shipowner. Therefore, when determining the carrier we should examine carefully the all factors and the circumstances surrounding the case. Also, negligence of a captain of a time-chartered ship causing damages to a third party. It will analyze the legal character of a time-charter contract, review judicial precedents on time-charter. The Inter-Club Agreement was drawn up and is intended to be a somewhat easier way of allocating liability for cargo claims between owners and charterers and, although there is still scope for disputes to arise, the Inter-Club Agreement does in fact to some extent make the allocation of liabilities for cargo claims easier. Finally, it will also make legislative suggestions to resolve complex issues involving maritime transportation contracts under the current Commercial Code.

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Use of Nuclear Power Sources in Outer Space and Space Law (우주에서의 핵연료(NPS)사용과 우주법)

  • Kim, Han-Taek
    • The Korean Journal of Air & Space Law and Policy
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    • v.22 no.1
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    • pp.29-54
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    • 2007
  • Nuclear Power Sources(NPS) have been used since 1961 for the purpose of generating energy for space objects and have since then been recognized as particularly suited essential to some space operations. In January 1978 a malfuctioning Soviet nuclear powered satellite, Cosmos 954, re-entered the earth's atmosphere and disintegrated, scattering radioactive debris over a wide area of the Canadian Northwest Territory. This incident provided some reasons to international legal scholars to make some principles to regulate using NPS in outer space. In 1992 General Assembly adopted "Principles Relevant to the Use of Nuclear Power Sources in Outer Space". These NPS Principles set out certain legal and regulatory requirements on the use of nuclear and radioactive power sources for non-propulsive purposes. Although these principles, called 'soft laws', are not legal norms, they have much enfluences on state practices such as 1983 DBS Principles(Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting), 1986 RS Principles(Principles Relating to Remote Sensing of the Earth from Space) and 1996 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interests of all States, Taking into Particular Account the Needs of Developing Countries. As far as 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space is concerned the main points such as free use of outer space, non-appropriation of celestial bodies, application of international law to outer space etc. have become customary international law binding all states. NPS Principles might have similar characters according to states' willingness to respect them.

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Study on the Legal Issues of New Draft of Civil Aviation Law in China (중국 민용항공법 개정 최근 동향과 주요 법적쟁점)

  • Lee, Hwa
    • The Korean Journal of Air & Space Law and Policy
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    • v.31 no.2
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    • pp.177-214
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    • 2016
  • During more than 20 years of practice, Civil Aviation Law has experienced three times of amendments since it was enacted in 1995. But these revisions are limited to the technical level. The problems and limitations have become increasingly prominent in its implementation. Firstly, the civil aviation law is the result of interests game among several departments and some legal issues was left behind and the regulation was very vague as a result. Secondly, the process of aviation legislation is the process that the country has undergone profound changes and social transformation. The 20 years is long enough for the society to undergo tremendous changes and 1995 version of civil aviation law does not keep pace of development of economy. There was a serious lag between reality and the law. In order to actively promote the development of the aviation industry and overcome implementation issues of the Civil Aviation Law, Civil Aviation Administration of China (CAAC) initiated modification procedure the law and published new draft of Civil Aviation Law in August 2016. The spirit of this modification is to learn and absorb new achievements of domestic and foreign legislation and the International Convention on civil aviation. Furthermore, the purpose of the revision is to provide favorable policy for the development of civil aviation industry and improve aviation safety and supervision, strengthen and protection of consumer rights and interests, to enhance the safety of civil aviation activities, and promote the development of general aviation. This revision concerned to the 78 articles which are revised or deleted and 24 articles added. The highlights of the draft include but not limited to the enhancement of security management, clarification of the main responsibility for production safety. And also it added the provisions related to the construction of effective tracking capability of public air transport enterprises and license system on the transport of dangerous goods. Compared with the existing civil aviation law, the draft has made a great improvements. But there are several deficiencies and limitations in the drafts. These problems need to be supplemented and perfected through further amendments in near future.

A study on air related multimodal transport and operator's legal liabilities (항공연계 복합운송의 현황과 손해배상책임 - 대법원 2014.11.27. 선고 2012다14562 판결을 중심으로 -)

  • Lee, Chang-Jae
    • The Korean Journal of Air & Space Law and Policy
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    • v.31 no.1
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    • pp.3-36
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    • 2016
  • Recently, the Supreme Court of Korea delivered a milestone judgment about air related multimodal transport. At there, the mattered cargo, some expensive jewellery, was transported from Qingdao, China to downtown office of consignee at Seoul via Incheon airport in Korea. As an air waybill was issued in this case, there was an air transport agreement between consignor and air courier operator. After arriving at Incheon airport, the shipment was transport by land arranged by the air courier operator, who was a defendant in this case. Upon arriving at the final destination, it was found that the jewellery was lost partly and based on circumstantial evidence, the damage presumed to be occurred during the land transport. As a subrogee, the insurance company who paid for consignee filed an action against the air courier operator for damage compensation. Defendant contended that Montreal convention should be applicable in this case mainly for limited liability. The lower court of this case confirmed that applying the limited liability clause under Montreal Convention is improper under the reason that the damage in this case was or presumed to be occurred during surface transport. It was focused on the Montreal Convention article 18 which says that the period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport. However, the Supreme Court overturned the lower court's decision. The delivered opinion is that the terms of condition on the air waybill including limited liability clause should be prevailed in this case. It seems that the final judgment was considered the fact that the only contract made in this case was about air transport. This article is for analysis the above decisions from the perspective that it is distinguishable between a pure multimodal transport and an expanded air transport. The main idea of this article is that under the expanded air transport, any carriage by land, sea or inland waterway only for the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment is still within the scop of air transport.

Changes of Anti-Clonorchis sinensis IgG Antibody in Serum after Praziquantel Treatment in Human Clonorchiasis (간흡충 감염자의 프라지콴텔 치료후 혈청내 IgG 항체가의 변화)

  • 홍성태
    • Parasites, Hosts and Diseases
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    • v.26 no.1
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    • pp.1-8
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    • 1988
  • Anti-Clonorchis IgG antibody levels in serum were observed by ELISA in 129 egg positive cases and in 25 controls. The antibody levels were 0.063 to 1.216 (0.325±0.202) in clonorchiasis cases and 0.078 to 0.670 (0.255±0.133) in controls. The difference was statistically significant. However, serological diagnosis of clonorchiasis was not satisfactory in lightly infected cases because of low levels of specific lgG antibody. The antibody levels were well correlated with EPG. Changes of the IgG antibody levels were not signiscant 12∼14 days, 4 weeks and 8∼9 weeks after praziquantel treatment. Seven and 13 months after treatment, the IgG antibody levels were lowered significantly. The period for serologically negative conversion after prasiquantel treatment was between 9 weeks and 7 months in human clonorchiasls.

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Policy suggestions for active reporting of medical professionals for early detection of child abuse (아동학대의 조기발견을 위한 제도적 개선 방안: 「아동학대범죄의 처벌 등에 대한 특례법」이 정한 의료인에 의한 신고를 중심으로)

  • Bae, Seung Min;Lee, Sun Goo
    • The Korean Society of Law and Medicine
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    • v.18 no.1
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    • pp.143-169
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    • 2017
  • The Act on Special Cases Concerning the Punishment, etc. of Child Abuse Crimes intends to encourage reporting and punishment of child abuse by using the concept of 'crime' in child abuse cases. Article 10 of the Act imposes duty to report child abuse on a number of different professions, including medical professionals. Currently, more than 80% of child abuse cases occur among family members and the detection rate of child abuse is as low as 0.5% in Korea. On the other hand, medical professionals can identify child abuse relatively clearly with specific medical opinions. Therefore, it is necessary that medical professions are informed of this duty and does not bear disincentive from reporting. This paper makes policy suggestions in this regard. First, it is necessary that medical students and medical professionals receive regular education about the obligation to report child abuse. Education should include details of the reporting duty, as well as the fact that there is legal obligation to report even if the child abuse is "suspicious", not certain. Second, it is imperative to establish and implement protective programs for medical professionals who report child abuse. The current law provides a rough framework for protection of people who report child abuse, but it is necessary to produce detailed guidelines that are applicable in the context of medical setting. Education for medical students and medical professionals should include the contents of these guidelines, so that they do not hesitate reporting because they fear the aftermath of reporting. Third, it is highly recommended that physicians use the national Baby/Infant Health Checkup Program as an opportunity to detect child abuse. In Korea, the Baby/Infant Health Checkup Program provides physicians to periodically monitor health condition of all babies and children until the age of 71 months. In order to utilize this program for early detection of child abuse, it is imperative that the bBaby/Infant Health Checkup Program is modified to involve child abuse experts and medical professionals who participate in the program are educated about child abuse.

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The Trend of Inpatients in California State Hospitals and Its Implications for Mental Health Policies in Korea (캘리포니아주 주립병원 입원환자들의 변화 추세 및 한국 정신보건제도의 발전을 위한 정책적 함의)

  • Hwang, Sung-Dong
    • Korean Journal of Social Welfare
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    • v.39
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    • pp.350-373
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    • 1999
  • The patient population of U. S. state mental hospitals has changed drastically since the 1960s, when the deintstitutionalization movement began. This paper is designed to look at what happened to the number of inpatients of state hospitals in California during the last 150 years and, from this, to explore implications for the future of the mental health system in Korea, especially for the viability of mental hospitals. The data had been collected by field research(visits to state hospitals and State Department of Mental Health, and interviews with mental health administrators) and accessing statistical publications and various reports. Since the first state hospital opened in 1851 the statewide inpatient population of individuals who were mentally disabled has grown and peaked at 37,489 in 1959. The number of patients in state hospitals, however, began declining in the early 1960s and was reduced to 10,874 by 1971, and to 4,973 by 1986. As of 1997, there were only 4, 263 inpatients remaining in the state hospital system. This dramatic decrease slowed down somewhat in 1980s and 1990s, but this trend seems irreversible except for the inpatients referred by the court. Now the beds in state hospitals are filled with more and more forensic patients, which constitutes nearly 70% of the total inpatient population. Based on these findings, it is well expected that the number of inpatients of mental hospitals in Korea will also be reduced in a significant way as the community-based mental health care system is gradually replacing the traditional one. Mental hospitals need to introduce more diversified programs for the care of the mentally ill, and concurrently more vigorous aftercare programs are required in the community.

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