• The Korean Journal of Air & Space Law and Policy
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• v.30 no.2
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• pp.83-153
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• 2015

As our economy grows and the number of aircraft increase, the number of civil execution against aircraft cases are likely to increase as well in the future. The purpose of this article is to present the legal theory on the civil execution against aircrafts by drawing on the legal theory on the civil execution against vessels which constitute a relatively large number of cases thus observed. The provisions of the civil execution against immovables or vessel, shall basically apply mutatis mutandis to the civil execution against aircraft or light aircraft. The civil execution against ultra-light flying devices or a foreign aircraft shall be executed in conformity with the civil execution against movables. There are a compulsory auction, an auction to execute a security right to aircraft, and an auction under the right of retention, etc. in the civil execution against an aircraft. A compulsory execution against an aircraft means an execution carried out by a creditor against a debtor's aircraft to obtain satisfaction of claims for the purpose of payment of money. The court of execution of a compulsory execution against an aircraft shall be the district court having jurisdiction over the airport of stoppage or storage of such aircraft at the time of seizure. The forums of execution of a compulsory execution against an aircraft shall be exclusive forums. When a court has rendered an order on commencing an auction, it shall order an execution officer to receive a certificate of the aircraft's registration and other documents as required for its operation, and to submit them to the court. A court may revoke the procedures for a compulsory auction when an execution officer fails to obtain a transfer of the aircraft's registration certificate, etc. and the location of the aircraft is not evident, not later than an elapse of 2 months from the date on which an order on commencing an auction has been rendered. In the case where it is deemed that there exists a business-related need or other based on proper reasoning, the court may permit the aircraft's operation, upon the motion submitted by the debtor. In this case, there shall be a consent from the creditor, the highest bidder, the next highest bidder and successful bidder. A court may, upon a motion submitted by the creditor, make the dispositions required for observing and preserving the aircraft. When a debtor has submitted the documents under subparagraph 2 or 4 of the Article 49 of the Civil Execution Act, and furnished the guarantee equivalent to the claims of the execution creditors and the creditors demanding a distribution and to the costs for execution, before a declaration of bid, the court shall, upon request, revoke other procedures than those for distribution. The provisions of a obligatory auction against vessel or aircraft and an auction to execute a security right to real estate or vessel, shall apply mutatis mutandis to an auction to execute the security right to aircraft. In an auction to execute the security right to aircraft case, an executive title is not necessary. An executory exemplification is not necessary in an application for an auction to execute the security right to aircraft. A court should examine the existence of security right and claim secured. No order on commencing an auction procedure shall be issued with non-existence or invalidity of the security right and absence or extinguishment of the claim secured. Furthermore, these prohibitions are the reason of a decision on non-permit for sale, the court overlooked these prohibitions, and the decision on a permit for sale became final and conclusive, the successful bidder who paid the price and registered of ownership could not acquire ownership of the aircraft sold. A court may render a ruling to put plural aircrafts up for a blanket auction, only when they are in restraint and related matter (Supreme Court Order 2001Ma3688 dated on August 22, 2001). A righter of retention on aircraft may file a request for an auction against the aircraft. The provisions of an auction to execute a security right to aircraft shall apply mutatis mutandis to the formal auction. Airport facility fee and an aircraft are not in restraint and related matter, so an airport management corporation does not hold the right of retention on the aircraft (Supreme Court Decision 2011Da29291 decided on April 10, 2014). In an auction in accordance with the right of retention, all encumbrances (e.g., mortgages) on the sold aircraft shall be extinguished by a sale under the legal conditions for sale. Not only creditors who have claims for preferential payment but also general creditors could demand for distribution. The precedence of the claim of the right of retention on aircraft and that of general creditor's claims are equal.

• Journal of Korean Society of Transportation
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• v.21 no.6
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• pp.109-122
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• 2003

우리나라는 2004년 4월 경부고속철도개통을 앞두고 마지막 준비를 하고 있다. 1964년10월 고속철도를 가장 먼저 개통한 일본을 비롯한 프랑스, 독일 등은 이미 고속철도가 철도교통의 중심은 물론 각국의 교통수송에 높은 비중을 차지하고 있다. 2001년에 일본이 경우 1일 773,951명을 수송하고 있으며, 프랑스는 228,714명을 수송하고 있다. 세계적으로도 고속철도는 2000년 현재 유럽이 15,350km, 아시아는 2,152,9km를 운영 중에 있는데 이는 2010년에는 유럽은 41,350km, 아시아는 4,755.7km로 증가될 전망이다. 특히 아시아는 2005년 10월 개통예정인 대만의 타이페이와 카오슝의 345km를 비롯하여, 중국은 상해~북경의 1,330km를 2008년 ㅂ구경올림픽에 맞추어 개통을 준비하고 있다. 일본, 프랑스, 독일 등 고속철도의 운영국가들은 고속철도수송의 수송량이 급격하게 증가하고 있다. 프랑스는 인기준으로 1996년에 비해 2001년에 49.3%, 독인은 1996년에 비해 2001년에 70.1%의 증가치를 보이고 있다. 철도수송에서의 고속철도의 비중도 높아 인${\cdot}$km기준으로 일본은 29%, 프랑스는 48.3%, 독일은 15.9%를 차지하고 있다. 이러한 고속철도가 발전한 요인은 항공기와도 경쟁이 될 정도의 빠른 속도와 안전, 높은 사회경제적 효과에 기인하고 있다. 고속철도의 비중이 높은 일본의 경우는 개통 이래 현재까지 약 62억명을 수송하고 있는데 사망사고는 한건도 없었다. 또한 1개 열차의 정시도착 오차는 24초에 불과하고, 항공기와도 경쟁력이 될 정도의 속도와 수송능력을 보유하고 있다. 실제로 500~700km구간에서 항공기와 고속철도이 경쟁이 치열한데 고속철도의 분담율이 67%를 차지하고 있다. 이러한 고속철도 발전으로 철도수송의 증가율에도 큰 영향을 미치고 있다. 프랑스와 독일의 경우는 자동차수송보다 철도수송이 최근 4년간 약 10%이상 증가하고 있는 것도 고속철도의 영향에 기인하고 있다. 고속철도의 또 다른 특징으로는 높은 유발수요효과로 일본의 신간선개통전후를 비교해 보면 예상치보다 약 6%~23%의 높은 수요유발효과를 보이고 있다. 이 결과 각궁의 고속철도는 매우 높은 수익성을 기록하고 있는데 일본은 개통 후 3년째 흑자를 기록하였고, 중국도 개통 후 7년에 단년도 흑자를 예상하고 있다. 이러한 고속철도의 발전에 기초해 유럽을 비롯하여, 아시아 등에서 고속철도의 건설이 더욱 가속화 될 것으로 예상되는데, 이러한 새로운 변화의 고속철도시대에 대비하여 우리나라도 장차 건설계획수립, 해외수출, 고속철도의 상호운영 등을 지금부터 계획을 수립하여 집행해야 할 것이다.

• The Korean Journal of Air & Space Law and Policy
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• v.26 no.1
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• pp.3-30
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• 2011

According to the Article 86 of the United Nations on the Law of the Sea(UNCLOS) the provisions of high seas apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. Article 87 also stipulates the freedom of the high seas. International laws on the flight over the high seas are found as follows; Firstly, as far as the nationality of the aircraft is concerned, its legal status is quite different from the ship where the flags of convenience can be applied practically. There is no flags of convenience of the aircraft. Secondly, according to the Article 95 of UNCLOS warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. We can suppose that the military(or state) aircraft over the high seas have also complete immunity from the jurisdiction of any State other than the flag State. Thirdly, according to the Article 101 of UNCLOS piracy consists of any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft. We can conclude that piracy can de done by a pirate aircraft as well as a pirate ship. Fourthly, according to the Article 111 (5) of UNCLOS the right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. We can conclude that the right of hot pursuit may be exercised only military aircraft, or aircraft clearly marked and identifiable as being on government service and authorized to that effect. Fifthly, according to the Article 110 of UNCLOS a warship which encounters on the high seas a foreign ship, is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy, (b) the ship is engaged in the slave trade, (c) the ship is engaged in an authorized broadcasting and the flag State of the warship has jurisdiction under article 109, (d) the ship is without nationality, or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. These provisions apply mutatis mutandis to military aircraft. Sixthly, according to the Article 1 (5)(dumping), 212(pollution from or through the atmosphere), 222(enforcement with respect to pollution from or through the atmosphere) of UNCLOS aircraft as well as ship is very much related to marine pollution. Seventhly, as far as the crime on board aircraft over the high seas is concerned 1963 Convention on the Offences and Certain Other Acts Committed on Board Aircraft(Tokyo Convention) will be applied, and as for the hijacking over the high seas 1970 Convention for the Suppression of Unlawful Seizure of Aircraft(Hague Convention) and as for the sabotage over the high seas 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation(Montreal Convention) will be applied respectively. These three conventions recognize the flag state jurisdiction over the crimes on board aircraft over the high seas. Eightly, as far as reconnaissance by foreign aircraft in the high seas toward the coastal States is concerned it is not illegal in terms of international law because its act is done in the high seas. Ninthly as for Air Defence Identification Zone(ADIZ) there are no articles dealing with it in the 1944 Chicago Convention. The legal status of the foreign aircraft over this sea zone might be restricted to the regulations of the coastal states whether this zone is legitimate or illegal. Lastly, the Arctic Sea is the frozen ocean. So the flight over that ocean is the same over the high seas. Because of the climate change the Arctic Sea is getting melted. If the coastal states of the Arctic Sea will proclaim the Exclusive Economic Zone(EEZ) as the ocean is getting melted, the freedom of flight over that ocean will also be restricted to the regulations of the coastal states.

• The Korean Journal of Air & Space Law and Policy
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• v.31 no.1
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• pp.37-62
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• 2016

Two controversial issues exist in interpretation of "Force Majeure" set forth in the Article 931 (4) of the Korean Commercial Code. Firstly, its scope of application is ambiguous. Secondly, there is a concern that the "immunity" under paragraph 1 and "Force Majeure" may overlap each other. "Force Majeure" refers an event resulted from either natural disaster or 3rd-party. Meanwhile, the latter implies relatively extensive and comprehensive meaning and its interpretation may vary depends on law enforcement. In general, the aircraft accident hardly results in damage or loss to the 3rd-party. Additionally, it is worth to review newly enacted clause and to define its applicability. When the 3rd party is suffered from damage or loss incurred by any external act, it is necessary to explicit the concept of the non-contractual liabilities with respect to 3rd party. From the perspective of protecting aviation industries, the commercial aviation operator may be entitled to immunity in respect of claim for damage incurred by the event of Force Majeure. However, this approach is directly opposite to the victim's benefit and protection by the law. Therefore, the priority of the legal protection should be considered. Although the interest of the commercial aviation operator is not negligible, the protection of the law should be favorable to the 3rd party. Otherwise, the innocent party has no right to claim for damage incurred by aviation accident. Another issue is about the possibility of overlapping of the provision set forth in the paragraph 1 and 4. The former states that the liabilities shall be exempted on account of either the unsettled political or economic situation but this clause is inconsistent with the interpretation on Force Majeure under the latter. As argued above, this may include any event resulted from either political or economic account by the external influence of the 3rd party, thus these two provisions are overlapped. Consequently, in order to develop ordinances and guidelines and to ensure an equal protection to both parties, above two issues must remain open for further discussions.

• The Korean Journal of Air & Space Law and Policy
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• v.27 no.1
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• pp.3-27
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• 2012

Although aviation safety and security have been improving, which has made air transportation more reliable, the international aviation community has witnessed a steady increase in the number of unruly passenger incidents. Under international law, the Tokyo Convention (The Convention on Offences and Certain Other Acts Committed on Board Aircraft of 1963) is applicable to unruly passenger issues. While the Tokyo Convention has been a successful convention which 185 member states have ratified, it has its shortcomings. Three major shortcomings are related to definition, jurisdiction, and enforcement. Firstly, the Tokyo Convention does not provide for a definition of unruly passengers, thereby resulting in a situation where conduct that may be considered to be a criminal offence in the country of embarkation may not be a criminal offence in the country where the aircraft lands. Having different definitions may lead to ineffective action on the part of air carriers. Secondly, the fact that the state of landing does not bear jurisdiction produces circumstances in which it is impossible to punish an unruly passenger who clearly committed an offence on board. Thirdly, the Tokyo Convention only recognizes the competence of the state of registry to exercise criminal jurisdiction but does not impose the duty to actually use that competence in any specific case. Along with ratifying the Tokyo Convention, Korea enacted the Aviation Navigation Safety Act in 1974 as a domestic legal approach to dealing with the problem of unruly passengers. Partially reflecting the ICAO's model legislation, Circular 288, the Aviation Safety and Security Act was enacted in 2002. Although the Korean Aviation Safety and Security Act is a comprehensive act which has been constantly updated, there is no provision with respect to jurisdiction and only the Korean criminal code is applicable to jurisdiction. The Korean criminal code establishes its jurisdiction in connection with territoriality, nationality and registration, which is essentially the same as the jurisdictional principles of the Tokyo Convention. Thus, the domestic legal regime cannot close the jurisdictional gap either. Similarly, Korean case law would not take an active posture to jurisdiction unless the offence in question is a serious one, such as hijacking. A Special Sub Committee of the ICAO Legal Committee (LCSC) was established to examine the feasibility of introducing amendments to the Convention on Offences and Certain Other Acts Committed on Board Aircraft of 1963 with particular reference to the issue of unruly passengers. The result of the ICAO's findings should lead to the modernization of the Tokyo Convention, thereby reducing the number of incidents caused by unruly passengers and enabling all parties concerned to respond to unruly passengers more effectively.

• The Journal of the Korea Contents Association
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• v.8 no.2
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• pp.195-204
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• 2008

With the growth of airline management, as well as computer and IT security, the international trade in this modern society has been rapidly increasing, Along with the advancing, airplanes have become a universal means of communication. However, the complications associated with airplane safety have also been brought up as a result, the most concerning of which is terrorism. One of the main counterplans for preventing terrorism is Ground security activities the core of Ground security activities is absolute safety for passengers in both passenger terminal and freight terminal. Subastral security refers to physical protection, proximity control and 100% security search and freight guarding of the passengers' possessions, and the personnel's duties to perform such jobs are be! coming more crucial. On the other hand, Airport security check has bee n gradually developing since the 1960's, when hijacking began to take place. Although the airports have been providing more safe and comfortable services to their customers, terrorism is still happening today. When Ground security activities is minute, the users feel displeasure and discomfort, yet considering solely their convenience can brings problems in achieving safety. Since the 9.11 terror in 2001, the idea of improving and strengthening airport security was reinforced and a considerable amount of estate is being spent today for invention and application of new technology. Various nations, including the United States, have been improving their systems of security through public services; public police department is actively carrying out their duties in airports as well. In San Francisco International Airport, private police department is in charge of collection of data, national events, VIP protection, law enforcement, cooperation within facilities, daily-based patrol and traffic control. Under guidance and supervision of national organizations, such as TSA, general police department interprets X-Rays, operates metal detectors, checks passports or IDs and observes reactions to explosives. Under these circumstances, studies about advancement of cooperation and duties of general police department and private police department necessitated: especially about private police department and their training for searching equipments, decrease in number of turn over rate, invention of technology and prior settlement in estate for security. The privacy of the public, who make up the major population of airport passengers, must also be minimized. In the following research, the activities of police departments in San Francisco International Airport will be analyzed in order to understand recent actions of the United States on airport security.