• The Korean Journal of Air & Space Law and Policy
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• v.30 no.2
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• pp.311-336
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• 2015

This article surveys the current international law with respect to RPAS from both the public air law and private air law perspectives. It then reviews current and proposed Australian domestic RPAS regulation while emphasizing the peculiar risks in operation of RPAS; and how they affect concepts of liability, safety and privacy. While RPAS operations still constitute only a small portion of total operations within commercial aviation, international pilotless flight for commercial air transport remains a future reality. As the industry is developing so quickly the earlier the pursuit of the right policy solutions begins, the better the law will be able to cope with the technological realities when the inevitable risks manifest in accidents. The paper acknowledges that a domestic or regional approach to RPAS, typified by the legislative success of the Australian experience, is and continues to be the principal measure to deal with RPAS issues globally. Furthermore, safety remains the foremost factor in present and revised Australian RPAS regulation. This has an analogue to the international situation. Creating safety-related rules is imperative and must precede the creation or adoption of liability rules because the former mitigates the risk of accidents which trigger the application of the latter. The flipside of a lack of binding airworthiness standards for RPAS operators is potentially a strong argument that the liability regime (and particularly strict liability of operators) is unfair and unsuited to pilotless flight. The potential solutions the authors raise include the need for revised ICAO guidance and, in particular, SARPs with respect to RPAS air safety, airworthiness, and potentially liability issues for participants/passengers, and those on the ground. Such guidance could then be adapted swiftly for appropriate incorporation into domestic laws bypassing the need for or administrative burden and time it would take to activate the treaty process to deal with an arm of aviation that states know all too well is in need of safety regulation and monitoring.

• 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.

• Journal of Arbitration Studies
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• v.14 no.2
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• pp.135-172
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• 2004

While doing business in China foreign companies occasionally find themselves embroiled in disputes with Chinese individuals, companies or the Chinese Government. There are three primary ways to resolve a commercial dispute in China are negotiation, arbitration and litigation. The best way of dispute resolution is negotiation as it is the least expensive method and the working relationship of both parties concerned in dispute. But negotiations do not always give rise to resolution. Arbitration is the next choice. Unless the parties concerned can agree to resort to arbitration after the dispute has arisen, the underlying contract namely, sales contract or separate agreement must show that disputes will be resolved by arbitration. Agreements to arbitration specify arbitration body and governing law. There are two Chinese government -sponsored arbitration bodies for handling cases involving at least one foreign party: China International Economic and Trade Arbitration Commission(CIETAC) and China Maritime Arbitration Commission(CMAC) for maritime disputes. Contracts regarding foreign companies doing business in China often designate CIETAC arbitration. CIETAC distinguishes between two kinds of dispute resolutions, foreign-related arbitration and domestic arbitration. For a dispute to be classified as foreign-related arbitration, one of the companies must be a foreign entity without a major production facility or investment in China. CIETAC has published rules which govern the selection of a panel if the contract does not specify how the choice of arbitration will be handled. CIETAC's list of arbitrators for foreign-related disputes, from which CIETAC's arbitrators must en chosen, includes may non-Chines arbitrators. But many foreign experts believe that some aspects of CIETAC needs to be improved. The purpose of this paper is to improve the understanding of arbitration in China, CIETAC by way of studying the current situation and improvement of international commercial arbitration in China.

• The Korean Society of Law and Medicine
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• v.17 no.2
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• pp.177-219
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• 2016

A commercial advertisement is not only a way of competition but also a medium of communication. Thus, it is under the constitutional protection of the freedom of business (article 15 of the Constitution) as well as the freedom of press [article 21 (1) of the Constitution]. In terms of the freedom of business or competition, it should be noted that an unfair advertising (false or misleading advertisement) can be regulated as an unfair competition, while any restraint on advertising other than unfair one might be doubted as an unjustifiable restraint of trade. In terms of the freedom of press or communication, it is important that article 21 (2) of the Constitution forbids any kind of (prior) censorship, and the Constitutional Court applies this restriction even to commercial advertising. In this article, the applicability of these schemes to advertising of the so-called learned professions, especially physician, are to be examined, and some proposals for the reformation of the current regulatory regime are to be made. Main arguments of this article can be summarized as follows: First, the current regime which requires advance review of physician advertising as prescribed in article 56 (2) no. 9 of Medical Act should be reformed. It does not mean that the current interpretation of article 21 of the Constitution is agreeable. Though a commercial advertising is a way of communication and can be protected by article 21 (1) of the Constitution, it should not be under the prohibition of censorship prescribed by article 21 (2) of the Constitution. The Constitutional Court adopts the opposite view, however. It is doubtful that physician advertising needs some prior restraint, also. Of course, there exists severe informational asymmetry between physicians and patients and medical treatment might harm the life and health of patients irrevocably, so that medical treatment can be discerned from other services. It is civil and criminal liability for medical malpractice and duty to inform and not regulation on physician advertising, to address these differences or problems. Advance review should be abandoned and repelled, or substituted by more unproblematic way of regulation such as an accreditation of reviewed advertising or a self-regulation preformed by physician association independently from the Ministry of Health and Welfare or any other governmental agencies. Second, the substantive criteria for unfair physician advertising also should correspond that of unfair advertising in general. Some might argue that a learned profession, especially medical practice, is totally different from other businesses. It is performed under the professional ethics and should not persue commercial interest; medical practice in Korea is governed by the National Health Insurance system, the stability of which might be endangered when commercial competition in medical practice be allowed. Medical Act as well as the condition of medical practice market do not exclude competition between physicians. The fact is quite the opposite. Physicians are competing even though under the professional ethics and obligations and all the restrictions provided by the National Health Insurance system. In this situation, regulation on physician advertising might constitute unjustifiable restraint of competition, especially a kind of entry barrier for 'new physicians.'

• Korean journal of applied entomology
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• v.56 no.3
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• pp.309-314
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• 2017

Sampling plan using yellow sticky traps for the major strawberry flying pests - western flower thrips Frankliniella occidentalis adults, cotton aphid Aphis gossypii alate and greenhouse whitefly Trialeurodes vaporarium adults was developed to determine the initial occurrence time. The analyzed trap data were obtained from three commercial strawberry greenhouses for the whole growing season (September to May of the following year) during 2013 to 2017 in Jeju province. Three flying pests showed the aggregated distribution patterns resulted from commonly used regression techniques - Taylor's power law and Iwao's patchiness regression. Taylor's power law was better description of mean-variance relationship of the western flower thrips and the cotton aphid than Iwao's patchiness regression, otherwise greenhouse whitefly was better described by Iwao's patchiness regression. There were highly significant correlated among mean density per trap, maximum density and proportion of traps with more than 10 individuals. To estimate 4.0 heads of mean density per trap, the minimum number of traps were required 13 traps for western flower thrips, 11 traps for cotton aphid and 10 traps for greenhouse whitefly. The sequential sampling plans at the fixed precision level 0.25 were developed using parameters of Taylor's power law for western flower thrips and cotton aphid, and of Iwao's patchiness regression for greenhouse whitefly.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.20
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• pp.129-150
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• 2003

Software license agreements, to be useful in the mass market, could not be individually negotiated, and had to be standardized and concise. The software license agreement needs to be presented to the licensee-users in a fashion that would allow for mass distribution of software, also for it to enforceable, that would draw the users' attention to the terms and conditions under which the publisher allowed the use of the software. These needs have been accomplished, with or without fail, through so called the "shrink-wrap licenses" Shrink-wrap licenses purpose to transfer computer softwares to their users by defining the terms and conditions of use of the software without implicating the "first sale doctrine" of the Copyright Act. These shrink-wrap licenses have become essential to the software industry. However, in USA, the law applicable to these licenses has been unclear and unsettled. Courts have struggled to develop a coherent framework governing their enforceability. Meanwhile, the National Conference of Commissioners on Uniform State Laws ("NCCUSL") in USA promulgated the Uniform Computer Information Transaction Act ("UCITA") governing contracts for computer information transaction on July 29, 1999. One clear objective of UCITA was to settle the law governing the enforceability of shrink-wrap licenses. In these respects, this paper first introduces the various forms that shrink-wrap licenses take(at Part II. Section 1.), and explains the main advantages of them(at Part II. Section 2.) Here it shows how shrink-wrap licenses value themselves for both software publishers and users, including that shrink-wrap licenses are a valuable contracting tool because they provide vital information and rights to software users and because they permit the contracting flexibility that is essential for today's software products. Next, this paper describes the current legal framework applicable to shrink-wrap licenses in USA(at Part III). Here it shows that in USA the development of case law governing shrink-wrap licenses occurred in two distinct stages. At first stage, judicial hostility toward shrink-wrap licenses marked such that they were not enforced pursuant to Article 2 of the Uniform Commercial Code. At second stage, courts began to recognize the pervasiveness of shrink-wrap licenses, their indispensability to the rapidly expanding information technology industry, and the urgent need to enforce such licenses in order to maintain low prices for consumers of computer hardware or software, resulting in the recognition of shrink-wrap licenses. Finally, in view of the importance of UCITA, this paper examines how it will affect the enforceability of shrink-wrap licenses(at Part IV). The drafters of UCITA, as well as the scholars and practitioners who have criticized it, agree that it validates shrink-wrap licenses, provided certain procedural protections are afforded to purchasers. These procedural protections include the licensee end-user must (i) manifest his assent to the shrink-wrap license, (ii) have an opportunity to review the shrink-wrap license, (iii) have a right to return the product without costs.

• Journal of Arbitration Studies
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• v.12 no.2
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• pp.263-302
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• 2003

Since new Korean arbitration law was modeledafter UNCITRAL Model Law on International Commercial Arbitration Law, the judicial review on the arbitral award is at most limited to fundamental procedural justice. Thus, drafting valid arbitration clause is paramount important to enforce arbitral awards in the new legal environment. A losing party in arbitral process would often claim of the invalidity of arbitration agreement to challenge the arbitral award. Especially, the validity of arbitration clause in the construction contracts is often challenged in Korean courts. This is because the construction contracts usually include selective arbitration agreement in multi-tiered dispute resolution clause that is drafted ambiguous or uncertain. In this paper selective arbitration agreement means a clause in a contract that provides that party may choose arbitration or litigation to resolve disputes arising out of the concerned contract. On the hand multi-tiered dispute resolution clause means a clause in a contract that provides for distinct stages such as negotiation, mediation or arbitration. However, Korean courts are not in the same position on the validity of selective arbitration agreementin multi-tiered dispute resolution clause. Some courts in first instance recognized its validity on the ground that parties still intend to arbitrate in the contract despite the poor drafted arbitration clause. Other courts reject its validity on the ground that parties did not intend to resort to arbitration only with giving up their right to sue at courts to resolve their disputes by choosing selective arbitration agreement. Several cases are recently on pending at the Supreme Courts, which decision is expected to yield the court's position in uniform way. Having reviewed recent Korean courts' decisions on validity and applicability of arbitration agreement, this article suggests that courts are generally in favor of arbitration system It is also found that some courts' decisions narrowly interpreted the concerned stipulations in arbitration law despite they are in favorable position to the arbitration itself. However, most courts in major countries broadly interpret arbitration clause in favor of validity of selective arbitration agreement even if the arbitration clause is poorly drafted but parties are presume to intend to arbitrate. In conclusion it is desirable that selective arbitration agreement should be interpreted favorable to the validity of arbitration agreement. It is time for Korean courts to resolve this issue in the spirit of UNCITRAL model arbitration law which the new Korean arbitration law is based on.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.38
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• pp.97-121
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• 2008

The updated International Standard Banking Practice(ISBP), International Chamber of Commerce Publication No. 681, was published to bring its contents in line with UCP 600. The ISBP 681 has dealt with 185 paragraphs from paragraphs 200 of ISBP 645 that are commonly arising in the credit transactions and also explains in detail some of the articles of UCP 600 with the proper interpretation. The updated version ISBP 681 involved aligning it with UCP 600, making certain technical adjustments in expression of words such as "in conflict" instead of "inconsistent", etc. Also descriptions of goods in commercial invoice to be altered the words into "services or performance" in addition to "goods". Despite the updated ISBP 681, there remains a question. Where the words "from" or "after" are used in regard to something other than a period of shipment or the maturity date of drafts, there is no guidance from the UCP as to its meaning. The party concerned in credit transactions is also required to have a full understanding of the paragraphs of ISBP 681 and the articles of UCP 600 in order to acquire the documents preparation and examination facilitating the parties to minimize discrepancies.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.39
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• pp.27-55
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• 2008

The concept of non-conformity is stipulated at Art. 35, CISG. According to the Art. 35, there is no directly stipulated concept of non-conformity. But Art. 35 said that the Seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. Accordingly, the concept of non-conformity contains the conformity of quality, quantity, description, delivery of different goods and documents. Art. 39 does not specify the form of notice required. So parties can require a particular form by agreement. If there is no agreed form of notice, buyer' s notice must be sent by means appropriate in the circumstances. And Art. 39 states that the required notice of lack of conformity must be given to the seller. Notice of defects conveyed by the buyer to an independent third party is not found to have been given by means appropriate in the circumstances. And Art. 39 is subject to the parties' power under Art. 6 to derogate from or vary the effect of any provision of the Convention. When determining which requirement must be satisfied by the buyer is specifying the nature of any lack of conformity, a mixed objective-subjective standard should be applied, which has regard to the respective commercial situation of the buyer and the seller, to any cultural differences, but above all, to the nature of the goods. Also to determine the specificity requirement is to satisfy the purpose of notice of lack of conformity.

• Journal of the Korean Institute of Landscape Architecture
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• v.28 no.1
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• pp.37-47
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• 2000

This research focused on the improved alternatives of the ordinance which practically control the open space in-situ, public open space and landscape construction related to city landscape for the healthy physical and mental life of the city dwellers. The contents of the study are as follows: 1. The special law of Landscape Architecture should be legislated. 2. The portion of landscaping should be changed by up-grading in the Ordinance of Landscape area and planting and the terms of landscape Facilities should include the ecological aspects in it's contents in the law. 3. The administration of local governments should actively lead and support the dwellers to make the roof gardens and the window gardens in the building area of cities or commercial districts which have relatively low rate of green space. 4. Any new construction and restoration of the buildings with preservation of the natural environment and creation of public open space should be given incentive and Set-back space in aesthetic area should have appropriate planting area and facilities in it. 5. Organizing professional landscape evaluation committee and composing evaluation standards are very important because of the contemporary proposition of the establishment of the establishment of ecological space and conservation of urban natural space. Because of the characteristics of Landscape Architecture, the Provisions of landscape Architecture Design and landscape architecture supervision of the specialist should be legislated and the Landscape Architectural Organization should be established within the Government.