• The Korean Journal of Air & Space Law and Policy
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• v.20 no.1
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• pp.211-253
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• 2005

Recently, the Korean Supreme Court released two important decisions concerning damages for the pain and suffering from Aircraft noise. The local people who are living near the Air Force practice site at Maehyang-ri and the Kimpo International Airport brought lawsuits against the Korean government requesting damages for their financial loss from the severe noise and the damages for their pain and suffering. Plaintiffs alleged that they suffered physical malfunctions, extreme disturbances and the reduction of property values from the extreme noises which were daily repeated. District Court of Seoul Province did not allow plaintiffs all but the damages for pain and suffering. Plaintiffs could not prove the causation between their financial loss and the noise. The Supreme Court confirmed the lower court's decision. Article V of the National Compensation Act (analogous to the Federal Tort Claims Act of the USA) reads, "the government shall be liable for any loss caused by the defect on establishment or maintenance of public facilities." In the two cases, the major issue was whether the government's establishment or maintenance of Air Force practice site and the airport was defective because they caused serious noise to surrounding neighbors. Previously, the Supreme Court interpreted the clause "defect on establishment or maintenance of public facilities" as failure of duty to provide safety measures to the degree generally required to ordinary manager. However the Court at this time interpreted differently that the defect could be found if the facility caused to any person loss to the degree intolerable. In the two cases the Court confirmed the lower court's finding that noise level at the site was severe enough to be intolerable. This standard is based on the severity of the loss rather than the failure of duty. It became easier for plaintiffs to prove the cause of action under this interpretation. The consequence of the ruling of these two cases is 'rush to the courtroom' by the local people at similar situations. The ruling of these two cases was not appropriate both in theory and in consequence. The Korean tort system is basically based on the theory of negligence. Strict liability is exceptional only when there is special legislation. The Court created strict liability rule by interpreting the Art. V of the National Compensation Act. This is against the proper role of the court. The result of the cases is also dismal. The government was already sued by a number of local people for damages. Especially the Department of Defense which is operating many airports nationwide has financial hardship, which will cause downsizing military practice by the Air Force in the long run, This is no good to anyone. Tens of millions of dollars which might be used for compensation might be better used to prevent further noise problem surrounding airports.

• The Korean Journal of Air & Space Law and Policy
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• v.26 no.1
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• pp.177-213
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• 2011

The purpose of this paper is to research on the liability and cases for space damage with reference to the space activity under the international space treaty and national space law of major countries. The United Nations has adopted two treaties relating to the liability for space damage as follows: the Outer Space Treaty of 1967 and the Liability Convention of 1972. Korea has enacted the Outer Space Damage Compensation Act of 2008 relating to the liability for space damages. The Outer Space Treaty of 1967 regulates the international responsibility for national activities in outer space, and the national tort liability for damage by space launching object. The Liability Convention of 1972 regulates the absolute liability by a launching state, the faulty liability by a launching state, the joint and several liability by a launching state, the person claiming for compensation, the claim method for compensation, the claim period of compensation, the claim for compensation and local remedy, the compensation amount for damage by a launching state, and the establishment of the Claims Commission. The Outer Space Damage Compensation Act of 2008 in Korea regulates the definition of space damage, the relation of the Outer Space Damage Compensation Act and the international treaty, the non-faulty liability for damage by a launching person, the concentration of liability and recourse by a launching person, the exclusion of application of the Product Liability Act, the limit amount of the liability for damage by a launching person, the cover of the liability insurance by a launching person, the measures and assistance by the government in case of occurring the space damage, and the exercise period of the claim right of compensation for damage. There are several cases with reference to the liability for damage caused by space accidents as follows: the Collision between Iridium 33 and Cosmos 2251, the Disintegration of Cosmos 954 over Canadian Territory, the Failure of Satellite Launching by Martin Marietta, and the Malfunctioning of Westar VI Satellite. In the disputes and lawsuits due to such space accidents, the problems relating to the liability for space damage have been settled by the application of absolute(strict) liability principle or faulty liability principle. The Liability Convention of 1972 should be improved as follows: the clear definition in respect of the claimer of compensation for damage, the measure in respect of the enforcement of decision by the Claims Commission. The Outer Space Damage Compensation Act of 2008 in Korea should be improved as follows: the inclusion of indirect damage into the definition of space damage, the change of the currency unit of the limit amount of liability for damage, the establishment of joint and several liability and recourse right for damage by space joint launching person, and the establishment of the Space Damage Compensation Review Commission. Korea has built the space center at Oinarodo, Goheung Province in June 2009. Korea has launched the first small launch vehicle KSLV-1 at the Naro Space Center in August 2009 and June 2010. In Korea, it will be the possibility to be occurred the problems relating to the international responsibility and the liability for space damage in the course of space activity. Accordingly the Korean government and launching organization should make the legal and systematic policy to cope with such problems.

• Proceedings of the Korean Institute Of Construction Engineering and Management
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• autumn
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• pp.305-310
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• 2001

The purpose of this study is to calculate delay damages for contractors. The study has been performed by investigation of delay cost occurrence status and the analysis of subway construction cases. The results of this study are as follows: 1. Delay cost( 1day) equivalent to $0.005\%$ of total construction cost by analysis case studies. 2. Including bank interest, dealy cost is analysed as the following; $1.1\~9.2\%$ of total construction cost in part extension period, $3.3\~11.0\%$ of total construction cost in total extension period. 3. In comparison between liquidated damages and delay cost, liquidated damages account for average 20.1 times of delay costs. 4. Acceleration cost will be calculate on the basis of delay cost calculation method. In the result of this method, acceleration cost is equal to delay cost at least or must be large than delay cost

• The Korean Journal of Air & Space Law and Policy
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• v.1
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• pp.147-162
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• 1989

The current status of the application and interpretation of the Warsaw Convention and its subsequent Protocols in Asian countries is in its fredgling stages compared to the developed countries of Europe and North America, and there is thus little published information about the various Asian governments' treatment and courts' views of the Warsaw System. Due to that limitation, the accent of this paper will be on Korea and Japan. As one will be aware, the so-called 'Warsaw System' is made up of the Warsaw Convention of 1929, the Hague Protocol of 1955, the Guadalajara Convention of 1961, the Guatemala City Protocol of 1971 and the Montreal Additional Protocols Nos. 1,2,3 and 4 of 1975. Among these instruments, most of the countries in Asia are parties to both the Warsaw Convention and the Hague Protocol. However, the Republic of Korea and Mongolia are parties only to the Hague Protocol, while Burma, Indonesia and Sri Lanka are parties only to the Warsaw Convention. Thailand and Taiwan are not parties only to the convention or protocol. Among Asian states, Indonesia, the Phillipines and Pakistan are also parties to the Guadalajara Convention, but no country in Asia has signed the Guatemala City Protocol of 1971 or the Montreal Additional Protocols, which Protocols have not yet been put into force. The People's Republic of China has declared that the Warsaw Convention shall apply to the entire Chinese territory, including Taiwan. 'The application of the Warsaw Convention to one-way air carriage between a state which is a party only to the Warsaw Convention and a state which is a party only to the Hague Protocol' is of particular importance in Korea as it is a signatory only to the Hague Protocol, but it is involved in a great deal of air transportation to and from the united states, which in turn is a party only to the Warsaw Convention. The opinion of the Supreme Court of Korea appears to be, that parties to the Warsaw Convention were intended to be parties to the Hague Protocol, whether they actually signed it or not. The effect of this decision is that in Korea the United States and Korea will be considered by the courts to be in a treaty relationship, though neither State is a signatory to the same instrument as the other State. The first wrongful death claim in Korea related to international carriage by air under the Convention was made in Hyun-Mo Bang, et al v. Korean Air Lines Co., Ltd. case. In this case, the plaintiffs claimed for damages based upon breach of contract as well as upon tort under the Korean Civil Code. The issue in the case was whether the time limitation provisions of the Convention should be applicable to a claim based in tort as well as to a claim based in contract. The Appellate Court ruled on 29 August 1983 that 'however founded' in Article 24(1) of the Convention should be construed to mean that the Convention should be applicable to the claim regardless of whether the cause of action was based in tort or breach of contract, and that the plaintiffs' rights to damages had therefore extinguished because of the time limitation as set forth in Article 29(1) of the Convention. The difficult and often debated question of what exactly is meant by the words 'such default equivalent to wilful misconduct' in Article 25(1) of the Warsaw Convention, has also been litigated. The Supreme Court of Japan dealt with this issue in the Suzuki Shinjuten Co. v. Northwest Airlines Inc. case. The Supreme Court upheld the Appellate Court's ruling, and decided that 'such default equivalent to wilful misconduct' under Article 25(1) of the Convention was within the meaning of 'gross negligence' under the Japanese Commercial Code. The issue of the convention of the 'franc' into national currencies as provided in Article 22 of the Warsaw Convention as amended by the Hague Protocol has been raised in a court case in Korea, which is now before the District Court of Seoul. In this case, the plaintiff argues that the gold franc equivalent must be converted in Korean Won in accordance with the free market price of gold in Korea, as Korea has not enacted any law, order or regulation prescribing the proper method of calculating the equivalent in its national currency. while it is unclear if the court will accept this position, the last official price of gold of the United States as in the famous Franklin Mint case, Special Drawing Right(SDR) or the current French franc, Korean Air Lines has argued in favor of the last official price of gold of the United States by which the air lines converted such francs into us Dollars in their General Conditions of Carriage. It is my understanding that in India, an appellate court adopted the free market price valuation. There is a report as well saying that if a lawsuit concerning this issue were brought in Pakistan, the free market cost of gold would be applied there too. Speaking specifically about the future of the Warsaw System in Asia though I have been informed that Thailand is actively considering acceding to the Warsaw Convention, the attitudes of most Asian countries' governments towards the Warsaw System are still wnot ell known. There is little evidence that Asian countries are moving to deal concretely with the conversion of the franc into their own local currencies. So too it cannot be said that they are on the move to adhere to the Montreal Additional Protocols Nos. 3 & 4 which attempt to basically solve many of the current problems with the Warsaw System, by adopting the SDR as the unit of currency, by establishing the carrier's absolute liability and an unbreakable limit and by increasing the carrier's passenger limit of liability to SDR 100,000, as well as permiting the domestic introduction of supplemental compensation. To summarize my own sentiments regarding the future, I would say that given the fact that Asian air lines are now world leaders both in overall size and rate of growth, and the fact that both Asian individuals and governments are becoming more and more reliant on the global civil aviation networks as their economies become ever stronger, I am hopeful that Asian nations will henceforth play a bigger role in ensuring the orderly and hasty development of a workable unified system of rules governing international commercial air carriage.

• Journal of the Korea Academia-Industrial cooperation Society
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• v.18 no.6
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• pp.596-608
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• 2017

In 2002, the government arranged an institutional strategy to make it possible for a consumers to make a claim for damages caused by product defects against a business that produces and sells a product by enforcing the Product Liability Law(hereinafter referred to as 'PL'). On the other hand, due to the recent humidifier sterilizer accident, approximately 12 cases of related bills, such as a revised bill for the product liability law, have been proposed to the National Assembly at present in an effort to introduce the group action system and punitive compensation system for the purpose of the strengthening of the corporate product liability, and consumer damage relief. Ironically, as much as 62.6% of small & medium businesses, which are actual interested parties to this bill, are unaware of this. Many companies are responding to PL with the rationalization of document preparation & storage, clarification of responsibility relations with related business operators, and PL insurance policy purchase, or securing compensation funds as a means of Product Liability Defense(PLD), but the methods of preparation such as this leave much room for limits on the considerations of product design and product safety. This paper presents the individual management system model with more focus on product safety by looking into the clear concept of PL and the countermeasures against it, grasping the relevance between the PL system and individual management system, and integrating the PL response system in preparation for the PL. It is hoped that the result of this research objective will be evaluated as a rational countermeasure for small & medium businesses to respond effectively to the PL.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.41
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• pp.103-132
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• 2009

In international sales of goods, the buyer must pay the price for the goods as required by the contract and CISG, The buyer's this obligation includes taking such steps and complying with such formalities as may be required under the contract, which includes providing the seller with relevant letter of credit through the issuing bank. Where the parties have not stipulated the time limit within which the credit should be opened, but there is an agreed date or period for shipment, the time limit for the L/C opening should be calculated back from the agreed date of shipment or the first date of shipment, while, in addition, the buyer should open the L/C sufficiently earlier than the shipment date in order for the seller to be able to know the L/C's opening before beginning to ship the goods. The L/C provided the buyer should conform to the contract of sale. Therefore, for example, when an unconfirmed L/C is provided violating the agreement or the L/C opened states that, under a FOB contract, a "freght prepaid" bill of lading shall be presented as a required document of the L/C, the buyer has failed to perform his obligation. If the buyer fails to perform his obligations to provide the letter of credit, the seller may require the buyer to perform that obligation; may fix an additional period of time of reasonable length for performance of the obligation; or, the seller may declare the contract avoided, if the failure amounts to a fundamental breach of contract, or if the buyer does not, within the additional period of time fixed by the seller, perform the obligation; and the seller claim damages. However, when a relevant L/C has been issued for the seller, as a rule, he cannot ask directly for the buyer to pay the price before avail himself of the L/C first.

• Korean Journal of Construction Engineering and Management
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• v.8 no.3
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• pp.125-133
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• 2007

If project time extension were required in the construction projects, either liquidated damages or extension costs should be applied according to causation of the schedule delays. However, in actual cases it is not applied so far according to the contract conditions. The reason why this situation happened Is that function of the present planning and scheduling is not working feasibly. The CPM schedule could not provide a proper solution for apportioning responsibility for the schedule delays. This situation could be considered as breach of contract and will cause potential disputes for schedule delay. Therefore, in this research process based contract administration model for construction delay claim is proposed to prevent schedule delay and solve the claims. The model is based on pro-active management for causation of delay to provide apportionment of responsibility and written evidences.

• The Journal of the Korea Contents Association
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• v.17 no.12
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• pp.180-190
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• 2017

This is Kangwon Land casino case due to the damages of betting money, which is likely to affect the contents industry in the future. The reason why the gambler and his family's suit is that why the manager did not control their own access or did not supervise the wagering rules. The provisions of the "Restriction on the amount of money to be paid to the casino" in the Article 14 of the Enforcement Decree of the Act on the Support for the Development of the Abandoned Mine Area are not intended to increase the duty of the casino managers. It is just one of many public regulations imposed. No matter what legislation is made for public interest, it can not be considered equally in the private duty. If so, too much effort will be required to enact or amend the public law and this makes the legislative activity impossible. The Act on the Restriction on Access to the Casino shall be construed accordingly. From the point of view of economic efficiency theory, if we overestimate statutory duties (liability for compensation) excessively, the price goes up on the market, and the volume of transaction decreases drastically. This reduces the economic utility of resources in the society as a whole (total output, foreign currency acquisition amount, etc.).

• Journal of the Korea Institute of Building Construction
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• v.3 no.2
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• pp.95-102
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• 2003

Financial difficulties and claims frequently stop construction works and cause subsequent contract cancellations. However, as the criteria to assess costs have not been established, many cases of legal disputes over the assessment of cancellation costs are taking place and the concerned parties are suffering the loss of time and money. Therefore, the present research aimed at developing a rational and systematic model of cancellation cost assessment following the cancellation of contracts. The research was carried out in the following methods and scopes. 1 ) The research was focused on the assessment of fair cancellation costs from constructors' side for contracts cancelled by any causes for which the owners have liability. 2) To obtain basic materials about cancellation cost assessment methods, contracts, claims, contract cancellations and construction-related laws at home and abroad were examined. 3) A cost assessment model was developed for systematization and efficient operation of cancellation cost assessment, and the reliability and efficiency of the proposed model was verified through a case study. The conclusions drawn from the research are as follows. The importance of the cancellation cost assessment model was confirmed as, using the cancellation cost assessment model, direct cancellation cost and indirect cancellation cost could be assessed systematically, the number of disputable items could be reduced because reasonable evidences of actual spending were presented, and the loss of constructors could be minimized because systematic and rational cost assessment became possible for many disputable cases of indirect cancellation cost, which the constructors had been unable to prove so far though having spent.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.44
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• pp.31-55
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• 2009

This study attempts to provide a comparative overview of the liability systems Korean law and the PELS adopt, that is, the approaches taken by Korean law and the PELS to deal with various irregularities of contractual performance. In addition, it examines in a comparative way the questions of what is the position of the seller's liability for his delivery of defective goods under the chosen liability system and what is the legal nature of the seller's liability. The study finds that the dual liability system taken by Korean law has caused some complexities as to the matter of which liability is applicable in some borderline cases. The problem in such complexities is originated in that the remedies available and the limitation period applicable are differentiated in accordance with one's different categorization among three types of default under the general liability and defective performance under the seller's guarantee liability. In this light, the study argues that the unified liability system under the PELS is superior because its concept of non-performance embraces in a unitary manner all the aspects of default including defects in quality, quantity and title. In addition, it finds that Korean law has suffered endless debates on the question of what are the true contents of the same remedies of rescission and damages provided under the seller's guarantee liability as under the general liability. The debates have been come along on the basis of the traditional presumption among some of civil law jurisdictions that two liabilities be different in terms of not only their legal nature but also their contents of remedies. The study argues that the problem may be circumvented, first, by another way of thinking that the unified liability in Korean law is inferred from the specification of the identical remedies for both the general liability and the seller's guarantee liability under the KCC, second, by the preposition that the requirement of fault be depended upon what remedy the buyer seeks to claim rather than what liability he does to rely on.