• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.55
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• pp.209-240
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• 2012

Since the age of Lord Mansfield, who laid the foundation of the modern English insurance contract law in the second part of the 18th century, English insurance law has developed a unique rule of warranty. Lord Mansfield adopted very different approach and afforded such a strict legal character to insurance warranty, because the promise, given by the insured, played an important role for the insurer to assess the scope of the risk insured at that time. It is still important that the insured keep his promises strictly to the insurer under the insurance contract, but legal environments have changed dramatically since the times of Lord Mansfield. English Law Commission proposed some proposals for reforming the warranty regime to reflect the changes of legal environment in CP 2007. This article is, therefore, designed to examine the proposals and consider their legal and practical implications. The proposals of Law Commission is summarized as following. First, in CP 2007, Law Commission made two principal proposals for reform of the law on warranty. The first is that the insurer should not be entitled to rely on a breach of warranty unless the insured has been provided with a witten statement of what they have undertaken under warranty. The second is that the insurer should not be entitled to reject a claim on the ground that the insured has breached a warranty unless there was a causal connection between the breach and the loss. Secondly, for consumer insurance, the rule requiring a causal connection would be mandatory, whereas for business insurance, it would be possible for the parties to agree on the effect a breach of warranty should have, provided they use clear language to express their intentions. Thirdly, where the insured contracted on the insurer's written standard terms of business, some statutory controls would be afforded to the contract to ensure that the cover was not substantially different from what the insured reasonably expected. Finally, Law Commission propose that a breach of warranty give the insurer the right to terminate the contract, rather than automatically discharging it from liability, but (unless otherwise agreed) only if the breach has sufficiently serious consequences to justify termination under the general law of contract. Having evaluated the proposals of the Law Commission and considered their legal and practical implications, it is quite clear that the proposed rule interfere with freedom of contract and create legal uncertainty. But change can not made without any victims, so Law Commission's attempt to change severe and injust aspects of the warranty regime would be very welcomed and respected.

• The Journal of Fisheries Business Administration
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• v.43 no.1
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• pp.63-74
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• 2012

The Korean Conflict of Laws Act recently incorporated much of the European Union's recent revision in "EC Convention on the Law Applicable to Contractual Obligations (Rome 1980)"(hereinafter Rome Convention). With the revision of Rome Convention applied to contractual obligations,"Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)"(hereinafter Rome I) has taken effect on December 2009. Before the effectivation of Rome I, "Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)"(hereinafter Rome II) has come into effect on January 2009. This means the revision of certain rules and its practical implications need an in-depth study on governing law rules under Rome I which provides newly effected governing laws applicable to contractual obligations. Moreover, uniform choice of law rules on non-contractual obligations needs to focus especially on marine insurance contract. Where policy assignment and subrogation causes, how to decide the governing law which will be applied to the insurer as a third party? This article attempts to analyze emerging legal issues in legal regimes determining choice of law, especially those in international marine insurance contracts. This will help Korean practitioners to be dialed in legal affairs under English Law as the governing law in their contracts.

• Journal of Environmental Policy
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• v.5 no.4
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• pp.127-154
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• 2006

It has been widely accepted that the environment is an important determining factor of human health. Appreciating the relationship between the environment and human health, Korean government has begun to deal with issues of environmental health. The government proclaimed the year of 2006 to be the first year of Environmental Health and established "The Environmental Health Plan for the next 10 Year". In order to achieve the goals in the plan, there are necessary considerations such as support systems for environment health related research, investigation, law, institution, administration, and so forth. This study suggests basic principles required to establish a legal regime of environmental health which is to implement the environmental health policies in Korea. Several cases of foreign legislation and policy relevant to environmental health are reviewed. Also, existing related legal system in Korea are analysed considering legal and institutional elements for establishing an effective environmental health policy. The main purpose of amending legal system related environmental health is to protect both public health and the soundness of ecosystem. To reach the goals effectively, the concept of 'environmental health' should be clearly established and presented. In addition, an advanced prevention system, including investigation and prevention of the cause of environmental diseases and risk assessment based on the precautionary principle, are substantial in the environmental health legislation. Also the environmental health law should guarantee public participation in decision making as well as the first consideration of susceptible or vulnerable population. This study concludes that the expected legislation related to environmental health should be a nonnative instrument not only for integrating each environmental protection scheme but also for establishing and implementing the policy.

• The Korean Journal of Air & Space Law and Policy
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• v.22 no.1
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• pp.125-162
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• 2007

The Convention on International Interests in Mobile Equipment and the Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Aircraft Equipment were adopted on 16 November 2001 at a diplomatic conference held in Cape Town under the joint auspices of UNIDROIT and ICAO. The entry into force of the Cape Town Convention and Protocol have occurred on 1 March 2006. The Cape Town Convention and Protocol provides an international legal regime for the creation, perfection and priority of security, title retention and leasing interests in aircraft equipment, which will be underpinned by an international registry. The purpose of this paper is to explain the objectives and principles of the Cape Town Convention and Protocol, to review the provisions relating to the international interests in aircraft equipment and international registry for their protection under the Cape Town Convention and Protocol, and to discuss the Issues on Korea's accession to the Cape Town Convention and Protocol. As the anticipated results of this paper, it will contribute to facilitate the financing of the acquisition and use of aircraft equipment of high value or particular economic significance in an efficient manner, and to save very large sums of money annually in financing charges, also the international interests in aircraft equipment will be recognized and protected universally.

• The Korean Journal of Air & Space Law and Policy
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• no.spc
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• pp.105-135
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• 2007

The Convention on International Interests in Mobile Equipment and the Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Aircraft Equipment were adopted on 16 November 2001 at a diplomatic conference held in Cape Town under the joint auspices of UNIDROIT and ICAO. The entry into force of the Cape Town Convention and Protocol have occurred on 1 March 2006. The Cape Town Convention and Protocol provides an international legal regime for the creation, perfection and priority of security, title retention and leasing interests in aircraft equipment, which will be underpinned by an international registry. The purpose of this paper is to explain the objectives and principles of the Cape Town Convention and Protocol, to review the provisions relating to the international interests in aircraft equipment and international registry for their protection under the Cape Town Convention and Protocol, and to discuss the Issues on Korea's accession to the Cape Town Convention and Protocol. As the anticipated results of this paper, it will contribute to facilitate the financing of the acquisition and use of aircraft equipment of high value or particular economic significance in an efficient manner, and to save very large sums of money annually in financing charges, also the international interests in aircraft equipment will be recognized and protected universally.

• The Korean Journal of Air & Space Law and Policy
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• v.7
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• pp.151-175
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• 1995

In recent years, questions have arisen under several forms with respect to the need for adapting present legal order established under the Chicago Convention and relevant customary rules into newly developed environment surrounding the international air transport industry. Major feature of such trends included in opinions for modification of the present legal order might be defined as more liberalistic approach to this industry. In this respect, many scholars and lawyers in this field agree with a view that a theoretical tie between an aircraft/air liners and a register - State lies in political and strategical concern of the State so that each aircraft/air liners has been attributed a single nationality. In the context of such concern, each aircraft/air liners has been related with each register-State in the form of "genuine connection". However, present and near future development of air transport industry and its world - wide market requires some modification of such single nationality regime. Taking into account such circumstances, States as creator of present legal order are in the process of establishing new legal order where air liners with multi - nationality are capable of satisfying to such needs. As adopting a series of liberalization package for air transport industry in european continent, European Union adopts a concept of "community air carrier", by which an air space of each member State is open to each other, especially through the grant of cabotage right. A serious concern may arise in such grant because the Article 7 of the Chicago Convention prohibits such grant on an exclusive basis. While many theoretical opinions have been put forward concerning the interpretation of that article, a case of European Union shall be a good test of the range of its application. It is anticipated that future development around this issue shaH furnish us a major feature of the liberalization of international air transportation and an adaptation process of present legal order.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.43
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• pp.239-273
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• 2009

Marine insurance contracts, which intended to provide indemnity against marine risks upon the payment of a premium, originated in Northern Italy in the late 12th and early 13th centuries. The law and practice of Italian merchants were later introduced into England through Lombard merchants. It is, therefore, quite exact that English and Continental marine insurance law have common root. Nevertheless, some significant divergences between English and Continental marine insurance systems occurred since the late 17th century, mainly due to different approaches adopted by English courts. The rule of warranty in English marine insurance was established in the second part of the 18th century by Lord Mansfield, who laid the foundations of the modern English law of marine insurance and developed different approaches, especially in the field of warranty in marine insurance law. Since the age of Lord Mansfield, English marine insurance law has developed a unique rule on warranty. Bearing in mind the realities of the 18th century, it could easily be understood why Lord Mansfield afforded such a strict legal character to marine warranties. At that time, the 'promise' given by the assured, played an important role for the insurer to assess the scope of the risk. Legal environments, however, have changed dramatically since the times of Lord Mansfield. Of course, it is still important that the assured keep his promises to the insurer under the insurance contract, which is based upon utmost good faith. Nevertheless, the remedy of automatic discharge from liability, regardless of existence of a casual link between the breach and loss seems harsh in the realities of the 21st century. After examining the warranty regime adopted by the German and Norwegian hull clauses, it is fair to say that they provide a more equitable approaches for the assured than does English law. Therefore, this article suggests that English warranty regime needs overall reform and it is time to reform.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.327-348
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• 2016

Under the Korean legal system, as an actual carrier is not the contractual party to the contract for carriage of goods by sea, it has been tortiously liable for the damage to, or loss of cargo, should there be the negligence by its part. However, the Rotterdam Rules introduces a revolutionary liability regime for the actual carrier. According to the Rotterdam Rules, the liability of the actual carrier is same with that of a contractual carrier with the result that a shipper is entitled to bring the direct action to the actual carrier, as well as the contractual carrier on the same basis. Nevertheless, it is expected to take long time for the new approach in respect of actual carrier's liability to be confirmed by many countries, and furthermore most of shipping countries including Korea still adopt the Hague-Vis by Rules where the shipper is not allowed to bring the direct action to the actual carrier. This study reviews on whether or not the alteration of actual carrier's liability based on Rotterdam Rules would be reasonable, considering the current Korean legal system. Furthermore, this study, whilst recognizing that the overall introduction of the new liability regime is somewhat premature, suggests the imposition of contractual liability to the actual carrier from a long-term perspective. Having in mind that the article 809 of the Korean Commercial Act allows the shipper to bring the direct action to the shipowner only in the case that a time charterer is the contractual carrier, this study explores a method to apply the contractual liability to the actual carrier in the case that a slot charterer or freight forwarder is the contractual carrier, in order to establish the uniform liability system.

• Strategy21
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• s.46
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• pp.57-88
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• 2020

Surrounded by powerful states, Korean maritime and airspace jurisdiction is constantly exposed to intrusions by its neighbors. Korean government has been, however, exercising significant degree of moderation in response to the occasions. This is where my research starts off: why does Korean government implement only mild measures, which sometimes seem to be insufficient, to infringements on maritime and airspace jurisdiction? I found the answer from the principles and rules of international law: to promote peace and prosperity of the international community, it placed limitations on state rights and prohibited use of force. This point will be elaborated in the paper by examining the contents of restriction and the history of the relevant principles. In the second part of the paper, I explore what strategy could be employed by a state to protect its jurisdiction under present international legal regime. Interestingly, international law, which restricts state jurisdiction, at the same time provides opportunities for lesser powers to protect their state jurisdiction. In the meantime, diplomatic efforts are required. I offer examples of Norway and Philippines, who successfully upheld their arguments against powerful states via international legal regime.

• Korea and Global Affairs
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• v.1 no.2
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• pp.33-84
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• 2017

This study deals with President Park Chung-hee's greed for dominance and oppression during the Yushin Regime in the 1970's and consists of case studies related to anti-democracy of the National Council for Unification Subject, illegality of President's emergency rule and oppression in the process of putting down Buma Uprising. The National Council for Unification Subject was an organization for presidential selection and institutionalized by the enactment of Yushin constitution. Emergency rule was carried into effect as a means to repressing college students and forces out of office for the president's long-term seizure of power. And Buma Uprising rose against violence in resistance to the Yushin regime and president Park Chung-hee's greed for dominance and oppression. These case analyses applied the aspects of causal relationship(birth and fall of Yushin Regime), legal system(Yushin constitution and president's emergency rule) and behavior(President Park's greed for dominance and oppression) for this study. The National Council for Unification Subject institutionalized through Yushin constitution and the Yushin regime formed by emergency rule enabled President Park to cling to long-term seizure of power by means of greed for dominance and oppression. After all, his failure to keep the spirit of the time and stepping stone for democratic constitutional government triggered Buma Uprising, a kind of anti-Establishment movement, and caused the fall of the Yushin regime.