• Title/Summary/Keyword: Aviation Criminal Law

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A Study on negligent liability in Aviation Criminal Law (항공형법에서의 과실 책임에 관한 연구)

  • Hwang, Ho-Won
    • Journal of the Korean Society for Aviation and Aeronautics
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    • v.13 no.2
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    • pp.48-62
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    • 2005
  • In aviation criminal law is negligence different from in civil law and in general criminal law. The Interpretation of aviation criminal negligence must be elucidated in characteristic own way. The thesis considers the principle of trust, permissible risk and the accomplice offender.

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Legal Problems of Crimes against Aircraft Safety in Korean Law (항공안전 관련 형사특별법에 대한 연구)

  • Song, Seong-Ryong;Kim, Dong-Uk
    • The Korean Journal of Air & Space Law and Policy
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    • v.26 no.2
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    • pp.69-100
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    • 2011
  • The penalty clauses of 'Aviation Act' and 'Aviation Safety and Security Act' going into effect now were legislated because the aviation safety is being more influenced by the aviation safety system compared to the ground or maritime transportation and it is possible the aircraft can harm to people and wealth located in the ground as well as threaten the safety of the passengers and crew on board when it is the target of crimes. However, analyzing the current acts, applicable objects and behavioral requirements of some provisions are too general, and they are providing severely high penalties in many clauses without separating applicable objects and behavioral requirements. In addition, there are some critical legislative defects and there is a problem in terms of law-applicable area in the legal system. It is inferred that these legislative problems of the criminal special-law related to the aviation were caused by following reasons; first, aviation security experts or policy-makers than criminal law experts attended more actively in the enactment process, second, the communication among specialist groups were not accomplished well enough.

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The Unmasked Aviation Accident Investigation System in Japan (일본항공사고 조사제도의 진실)

  • Sekiguchi, Masao
    • The Korean Journal of Air & Space Law and Policy
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    • v.16
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    • pp.65-74
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    • 2002
  • The Japanese Aviation Accident Investigation Board has two faces. While the surface of the Board is a one of the very accident investigation organ, its shadow face is a one of the very expert witness drawing up a requested written opinion for the sake of the criminal investigation of the Police under the two secret inter-ministerial accords. This Paper proposes that some evidence obtained by investigation ought to be protected for disclosure and use by privilege derived from on of our most basic legal principles: "Nemo debet se-ipsem accusare-no one is required to incriminate oneself-".

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The Need for Modernization of the Tokyo Convention(1963) on the Issue of Unruly Passengers and the Inadequacy of Korean Domestic Legal Approaches (기내 난동승객관련 도쿄협약의 개정필요성과 한국국내법적 접근의 한계)

  • Bae, Jong-In;Lee, Jae-Woon
    • 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.

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A Study on 2010 Beijing Convention for Antiterrorism of International Aviation - Compared Beijing Convention(2010) with Montreal Protocol - (국제항공테러방지 북경협약(2010)에 관한 연구 - 몬트리올협약과의 비교를 중심으로 -)

  • Hwang, Ho-Won
    • The Korean Journal of Air & Space Law and Policy
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    • v.25 no.2
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    • pp.79-112
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    • 2010
  • The Beijing Convention of 2010 taken together effectively establishes a new broader and stronger civil aviation security framework. This adoption would significantly advance cooperation in prevent of the full range of unlawful acting relation to civil aviation and the prosecution and punishment of offenders. First, the Beijing Convention of 2010 will require parties to criminalize a number of new and emerging threats to the safety of civil aviation, including using aircraft as a weapon and organizing, directing and financing acts of terrorism. These new treaties reflect the international community's shared effort to prevent acts of terrorism against civil aviation and to prosecute and punish those who would commit them. Second, this convention will also require States to criminalize the transport of biological, chemical, nuclear weapons and related material. These provisions reflect the nexus between non-proliferation and terrorism and ensure that the international community will act to combat both. Third, this Convention shall not apply to aircraft used in military, customs or police services. As a substitute, International Humanitarian Law will be applied in a case. Moreover, the National Jurisdiction and the application of the law will be extended farther. The treaty promotes cooperation between States while emphasizing the human rights and fair treatment of terrorist suspects.

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A Study on the Profiling System in the Aviation Security (항공보안에서의 프로파일링 연구)

  • Hwang, Ho-Won;Lee, Kyu-Hang
    • The Korean Journal of Air & Space Law and Policy
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    • v.22 no.2
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    • pp.155-175
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    • 2007
  • As intellectual terror threats increase, we feel the limit in coping with those threats and the things we do are placing traditional X-ray machines & ETD and increasing aviation security staffs. In fact, even if air transportation system is the fast and most efficient transportation methods, it is true that there are many inconveniences to endure due to terror threats. In the name of security, even if we make a lot of efforts and time to screen both good-natured passengers, baggage, cargo and suspicious passengers, it is impossible to screen perfectly and it is not an efficient methods. Therefore, we introduce profiling system that reduce the effort to screen good-natured passengers but focus on screening dangerous passengers and baggages. Profiling system strengthens aviation security, using the concept "Selection & Concentration". Israel started to introduce manual profiling system in aviation security, which is interviewing suspicious passengers and it has been used in crime investigation since 1960. And it has been upgraded and diversified to CAPPS(Computer Assisted Passenger Screening Program) and SPOT(Screening Passenger by Observation). So, this theses is to study on the concept & kind of profiling and profiling methods adopted in airlines. Also it presents the method of introduction of profiling system in Korea and the necessity of making law on it.

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Research on legal improvement measurements on drone use

  • Park, Jong-Ryeol;Noe, Sang-Ouk
    • Journal of the Korea Society of Computer and Information
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    • v.22 no.3
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    • pp.147-153
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    • 2017
  • The main subject of year 2016 Davos forum was "The 4th Industrial Revolution." Recently, interests and investment in drone market, so called industrial revolution in the sky is growing in many countries around the world. Before, drone was used for military purpose such as reconnaissance or attacking but today, it is used in various private sectors such as unmanned delivery service, agriculture, leisure activities, etc. Presently, many major countries in the world are already involved in the 'war without gunfire' to be dominant in this drone industry. Korean government also has announced an extreme relaxation of regulations for growing drone industry by opening a conference with Ministers related to economics. During the conference, business scope of drone which was limited to agriculture, photographing, and observation was expanded to all the fields except for cases hindering national safety and security. In terms of shooting purpose drone its process of receiving approval for flight and shooting is simplified to online registration. What is more, drone delivery service will be allowed in island areas such as Goheung, Yeongwol, etc from first term of year 2017. Finding the way to apply drone in criminal investigation is also speeding up. Recently, Public Safety Policy Research Center in Korean National Police University has inquired for research service and its result will be out around November. Likewise, although more and stronger foundation for supporting drone industry is made but there are still, some opinions saying that we should take a careful approach in consideration to the side effect such as abuse in crime. One may also try terror by placing a dangerous substance. If drone falls, it may hurt any civilians. Moreover, if shopping purpose drone is hacked, it may result in violation of privacy. Compared to America, Europe, and China, we are at the very beginning stage of drone industry and it is necessary to reorganize legal issues to grow this industry. This can be thought from two perspectives; first, the growth of drone industry is blocked by difficult regulations on Aviation Law and Radio Regulation Law. The second issue is the safety and privacy that are required for operating drone. For the advanced technologies to make human life more profitable, more active and proactive actions are required by criminal law side. In preparation to the second mechanical era where man and machines should go together, I hope that responsible preparation is required in all fields including the criminal law.

The International Civil Aviation Organization and Recent Developments of Air Law in a Changing Environment (변환기(變換期)에 있어서의 국제민간항공기구(國際民間航空機構)(ICAD)와 항공법(航空法) 발전(發展)의 최근(最近) 동향(動向))

  • Choi, Wan-Sik
    • The Korean Journal of Air & Space Law and Policy
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    • v.4
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    • pp.7-35
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    • 1992
  • The expansion of air transport on a global scale with ever increasing traffic densities has brought about problems that must be solved through new multilateral mechanisms. Looking to the immediate future, air transport will require new forms of international cooperation in technical and economic areas. Air transport by its very nature should have been a counterforce to nationalism. Yet, the regulatory system in civil aviation is still as firmly rooted in the principle of national sovereignty as when it was first proclaimed at t-11e Paris Convention of 1919 and reaffirmed in the Chicago Convention. Sovereignty over the airspace has remained the cornerstone of relations between states in all respects of air transport. The importance of sovereignty over air space embodied in article 1 of the Chicago Conrenton also is responsible for restricting the authority of ICAO as an intergovernmental regulatory agency. The Orgenization, for all its extensive efforts, has only limited authority. ICAO sets standards but cannot enforce them; it devises solutions but cannot impose them. To implement its rules ICAO most rely not so much on legal requirements as on the goodwill of states. It has been forty-eight years since international community set the foundations of the international system in civil aviation action. Profound political, economic and technological changes have taken place in air transport. The Chicago Convention is living proof that staes can work together to make air transport a safe mode of travel. The law governing international civil auiation is principally based on international treaties and on other regulation agreed to by governments, for the most part through the mechanism of ICAO. The role of ICAO international standards and recommended practices and procedures dealing with a broad range of technical matters could hardly be overestimated. The organization's ability to develop these standards and procedures, to adapt them continuously to the rapid sate of change and development of air transport, should be particularly stressed. The role of ICAO in the area of the development of multilateral conventions on international air law has been successful but to a certain degree. From the modest starting-point of the Tokyo Convention, we have seen more adequate international instruments prepared within the scope of ICAO activities, adopted: the Hague Convention of 1970 for the suppression of Unlawful Seizure of Aircraft and the Montreal Convention of 1971 for the Suppression of Unlawful Acts against the Safety of Civil Aviation. The work of ICAO in the new domain of international law conventions concerning what has been loosely termed above as the criminal problems connected with international air transport, in particular the problem of armed aggression against aircraft, should be positively appreciated. But ICAO records in the domain of developing a uniform legal system of international carriage by air are rather disappointing. The problem of maintaining and developing the uniformity of this regulation exceeds the scope of interest and competence of governmental transport agencies. The expectations of mankind linked to it are too great to give up trying to restore the uniform legal system of international air carriage that would create proper conditions for its further growth. It appears that ICAO has, at present, a good opportunity for doing this. The hasty preparation of ICAO draft conventions should be definitely excluded. Every Preliminary draft convention ought to be sent to Governments of all member-States for consideration, So that they could in form ICAO in due time of their observation. The problom of harmonizing a uniform law of international air carriage with that of other branches of international transport should demand more and more of its attention. ICAO cooperation with other international arganization, especially these working in the field of international transport, should be strengthened. ICAO is supposed to act as a link and a mediator among, at times the conflicting interests of member States, serving the happiness and peace of all of the world. The transformation of the contemporary world of developing international relations, stimulated by steadily growing international cooperation in its various dimensions, political, economic, scientific, technological, social and cultural, continuously confronts ICAO with new task.

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A Study on Jurisdiction under the International Aviation Terrorism Conventions (국제항공테러협약의 관할권 연구)

  • Kim, Han-Taek
    • The Korean Journal of Air & Space Law and Policy
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    • v.24 no.1
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    • pp.59-89
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    • 2009
  • The objectives of the 1963 Tokyo Convention cover a variety of subjects, with the intention of providing safety in aircraft, protection of life and property on board, and promoting the security of civil aviation. These objectives will be treated as follows: first, the unification of rules on jurisdiction; second, the question of filling the gap in jurisdiction; third, the scheme of maintaining law and order on board aircraft; fourth, the protection of persons acting in accordance with the Convention; fifth, the protection of the interests of disembarked persons; sixth, the question of hijacking of aircraft; and finally some general remarks on the objectives of the Convention. The Tokyo Convention mainly deals with general crimes such as murder, violence, robbery on board aircraft rather than aviation terrorism. The Article 11 of the Convention deals with hijacking in a simple way. As far as aviation terrorism is concerned 1970 Hague Convention and 1971 Montreal Convention cover the hijacking and sabotage respectively. The Problem of national jurisdiction over the offence and the offender was as tangled at the Hague and Montreal Convention, as under the Tokyo Convention. Under the Tokyo Convention the prime base of jurisdiction is the law of the flag (Article 3), but concurrent jurisdiction is also allowed on grounds of: territorial principle, active nationality and passive personality principle, security of the state, breach of flight rules, and exercise of jurisdiction necessary for the performance of obligations under multilateral agreements (Article 4). No Criminal jurisdiction exercised in accordance with national law is excluded [Article 3(2)]. However, Article 4 of the Hague Convention(hereafter Hague Article 4) and Article 5 of the Montreal Convention(hereafter Montreal Article 5), dealing with jurisdiction have moved a step further, inasmuch as the opening part of both paragraphs 1 and 2 of the Hague Article 4 and the Montreal Article 5 impose an obligation on all contracting states to take measures to establish jurisdiction over the offence (i.e., to ensure that their law is such that their courts will have jurisdiction to try offender in all the circumstances covered by Hague Article 4 and Montreal Article 5). The state of registration and the state where the aircraft lands with the hijacker still on board will have the most interest, and would be in the best position to prosecute him; the paragraphs 1(a) and (b) of the Hague Article 4 and paragraphs 1(b) and (c) of the Montreal Article 5 deal with it, respectively. However, paragraph 1(b) of the Hague Article 4 and paragraph 1(c) of the Montreal Article 5 do not specify if the aircraft is still under the control of the hijacker or if the hijacker has been overpowered by the aircraft commander, or if the offence has at all occurred in the airspace of the state of landing. The language of the paragraph would probably cover all these cases. The weaknesses of Hague Article 4 and Montreal Article 5 are however, patent. The Jurisdictions of the state of registration, the state of landing, the state of the lessee and the state where the offender is present, are concurrent. No priorities have been fixed despite a proposal to this effect in the Legal Committee and the Diplomatic Conference, and despite the fact that it was pointed out that the difficulty in accepting the Tokyo Convention has been the question of multiple jurisdiction, for the reason that it would be too difficult to determine the priorities. Disputes over the exercise of jurisdiction can be endemic, more so when Article 8(4) of the Hague Convention and the Montreal Convention give every state mentioned in Hague Article 4(1) and Montreal Article 5(1) the right to seek extradition of the offender. A solution to the problem should not have been given up only because it was difficult. Hague Article 4(3) and Montreal Article 5(3) provide that they do not exclude any criminal jurisdiction exercised in accordance with national law. Thus the provisions of the two Conventions create additional obligations on the state, and do not exclude those already existing under national laws. Although the two Conventions do not require a state to establish jurisdiction over, for example, hijacking or sabotage committed by its own nationals in a foreign aircraft anywhere in the world, they do not preclude any contracting state from doing so. However, it has be noted that any jurisdiction established merely under the national law would not make the offence an extraditable one under Article 8 of the Hague and Montreal Convention. As far as international aviation terrorism is concerned 1988 Montreal Protocol and 1991 Convention on Marking of Plastic Explosives for the Purpose of Detention are added. The former deals with airport terrorism and the latter plastic explosives. Compared to the other International Terrorism Conventions, the International Aviation Terrorism Conventions do not have clauses of the passive personality principle. If the International Aviation Terrorism Conventions need to be revised in the future, those clauses containing the passive personality principle have to be inserted for the suppression of the international aviation terrorism more effectively. Article 3 of the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Article 5 of the 1979 International Convention against the Taking of Hostages and Article 6 of the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation would be models that the revised International Aviation Terrorism Conventions could follow in the future.

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A Comparative Review on Civil Money Penalties in Aviation Law (항공 과징금 제도의 비교법적 검토)

  • Lee, Chang-Jae
    • The Korean Journal of Air & Space Law and Policy
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    • v.34 no.1
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    • pp.3-38
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    • 2019
  • In 1984, Congress enacted a new measure of administrative sanctions which is a civil money penalty program for violations of Aviation Act and its implementing regulations. This civil money penalty system has been in operations in lieu of suspending or revoking certificates issued by Korean government, Ministry of Land, Infrastructure, and Transport. According to the rules of Aviation Business Act or Aviation Safety Act, where the Minister of Land, Infrastructure and Transport should order an air carrier to suspend operation because of her violation under certain rules, in which case the suspension of operation is likely to cause serious inconvenience to consumers of air transport services or to harm public interest, the Minister of the department may impose an administrative monetary penalty in lieu of the suspension of operation. In this regard, airline related civil money penalties are somewhat different from those of fair trade, which is the origin of the money penalties system in Korea. Civil money penalties in the field of fair trade are imposed on executive duty violations that undermine the value of the market economy order, and focus on reimbursement of profits due to violations and compensation for unfair spending by consumers. However, in the aviation sector, breach of duty by a business operator does not simply cause the property loss of the public, but it has a direct impact on life or property of the public. In this respect, aviation penalties are more likely to be administrative sanctions or punitive measures than refunds of unfair benefits, compared to penalties in the field of fair trade. In general, civil money penalties have been highly preferred as administrative sanctions because they are subject to investigations by administrative experts and thus, efficiency can be ensured and execution is quicker than judicial procedures. Moreover, in Korea, because punitive civil damages cannot awarded by the courts, the imposition of civil money penalties is recognized as a means of realizing social justice by recognizing the legal feelings of the people. However, civil money penalties are administrative sanctions, and in terms of effectiveness, they are similar to criminal fines, which are a form of punishment. Inadequate legislation and operation of penalties imposition may cause damage to the value of Constitution. Under the above recognition, this paper has been described for the purpose of identifying the present status of the civil money penalties imposition system and operating status in the area of air transport under the laws and regulations in Korea. Especially, this paper was focused on exploring the problem and improvement direction of Korean system through the comparative study with foreign laws and regulations.