• The Korean Journal of Air & Space Law and Policy
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• v.18
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• pp.9-39
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• 2003

The rule of the Warsaw Convention of 1929 are well known and still being all over the world. The Warsaw Convention is undoubtedly the most widely accepted private international air law treaty with some 140 countries. In the international legal system for air transportation, the Warsaw Convention has played a major role for more than half century, and has been revised many times in consideration of the rapid developments of air high technology, changes of social and economic circumstances, need for the protection of passengers. Some amendments became effective, but others are still not effective. As a result, the whole international legal system for air transportation is at past so complicated and tangled. However, the 'Warsaw system' consists of the Warsaw Convention of 1929 the Guadalajara Convention of 1961, a supplementary convention, and the following six protocols: (1) the Hague Protocol of 1955, (2) the Guatemala Protocol of 1971, (3) the Montreal Additional Protocols, No.1, (4) the Montreal Additional Protocol No.2, (5) the Montreal Additional Protocol No.3, and (6) the Montreal Additional Protocol No.4. of 1975. As a fundamental principle of the air carrier's liability in the international convention and protocols, for instance in the Warsaw Convention and the Hague Protocol, the principle of limited liability and a presumed fault system has been adopted. Subsequently, the Montreal Inter-carrier Agreement of 1966, the Guatemala City Protocol, the Montreal Additional Protocol No.3, and the Montreal Additional Protocol No. 4 of 1975 maintained the limited liability, but substituted the presumed liability system by an absolute liability, that is, strict liability system. The Warsaw System, which sets relatively low compensation limits for victims of aircraft accidents and regulates the limited liability for death and injury of air passengers, had become increasingly outdated. Japanese Airlines and Inter-carrier Agreement of International Air Transport Association in 1995 has been adopted the unlimited liability of air carrier in international flight. The IATA Inter-Carrier Agreement, in which airlines in international air transportation agree to waive the limit of damages, was long and hard in coming, but it was remarkable achievement given the political and economic realities of the world. IATA deserves enormous credit for bringing it about. The Warsaw System is controversial and questionable. In order to find rational solution to disputes between nations which adopted differing liability systems in international air transportation, we need to reform the liability of air carriers the 'Warsaw system' and fundamentally, to unify the liability system among the nations. The International Civil Aviation Organization(ICAO) will therefore reinforce its efforts to further promote a legal environment that adequately reflects the public interest and the needs of the parties involved. The ICAO Study Group met in April, 1998, together with the Drafting Committee. The time between the "Special Group on the Modernization and Consolidation of the 'Warsaw system'(SGMW)" and the Diplomatic Conference must be actively utilized to arrange for profound studies of the outstanding issues and for wide international consultations with a view to narrowing the scope of differences and preparing for a global international consensus. From 11 to 28 May 1999 the ICAO Headquarters at Montreal hosted a Diplomatic Conference convened to consider, with a view to adoption, a draft Convention intended to modernize and to integrate replace the instruments of the Warsaw system. The Council of ICAO convened this Conference under the Procedure for the Adoption of International Conventions. Some 525 participants from 121 Contracting States of ICAO attended, one non-contracting State, 11 observer delegations from international organizations, a total of 544 registered participants took part in the historic three-week conference which began on 10 May. The Conference was a success since it adopted a new Convention for the Unification of Certain Rules for International Carriage by Air. The 1999 Montreal Convention, created and signed by representatives of 52 countries at an international conference convened by ICAO at Montreal on May 28, 1999, came into effect on November 4, 2003. Representatives of 30 countries have now formally ratified the Convention under their respective national procedures and ratification of the United States, which was the 30th country to ratify, took place on September 5, 2003. Under Article 53.6 of the Montreal Convention, it enters into force on the 60th day following the deposit of the 30th instrument of ratification or acceptation. The United States' ratification was deposited with ICAO on September 5, 2003. The ICAO have succeeded in modernizing and consolidating a 70-year old system of international instruments of private international law into one legal instrument that will provide, for years to come, an adequate level of compensation for those involved in international aircraft accidents. An international diplomatic conference on air law by ICAO of 1999 succeeded in adopting a new regime for air carrier liability, replacing the Warsaw Convention and five other related legal instruments with a single convention that provided for unlimited liability in relation to passengers. Victims of international air accidents and their families will be better protected and compensated under the new Montreal Convention, which modernizes and consolidates a seventy-five year old system of international instruments of private international law into one legal instrument. A major feature of the new legal instrument is the concept of unlimited liability. Whereas the Warsaw Convention set a limit of 125,000 Gold Francs (approximately US$ 8,300) in case of death or injury to passengers, the Montreal Convention introduces a two-tier system. The first tier includes strict liability up to l00,000 Special Drawing Rights (SDR: approximately US$ 135,000), irrespective of a carrier's fault. The second tier is based on presumption of fault of a carrier and has no limit of liability. The 1999 Montreal Convention also includes the following main elements; 1. In cases of aircraft accidents, air carriers are called upon to provide advance payments, without delay, to assist entitled persons in meeting immediate economic needs; the amount of this initial payment will be subject to national law and will be deductable from the final settlement; 2. Air carriers must submit proof of insurance, thereby ensuring the availability of financial resources in cases of automatic payments or litigation; 3. The legal action for damages resulting from the death or injury of a passenger may be filed in the country where, at the time of the accident, the passenger had his or her principal and permanent residence, subject to certain conditions. The new Montreal Convention of 1999 included the 5th jurisdiction - the place of residence of the claimant. The acceptance of the 5th jurisdiction is a diplomatic victory for the US and it can be realistically expected that claimants' lawyers will use every opportunity to file the claim in the US jurisdiction - it brings advantages in the liberal system of discovery, much wider scope of compensable non-economic damages than anywhere else in the world and the jury system prone to very generous awards. 4. The facilitation in the recovery of damages without the need for lengthy litigation, and simplification and modernization of documentation related to passengers. In developing this new Montreal Convention, we were able to reach a delicate balance between the needs and interests of all partners in international civil aviation, States, the travelling public, air carriers and the transport industry. Unlike the Warsaw Convention, the threshold of l00,000 SDR specified by the Montreal Convention, as well as remaining liability limits in relation to air passengers and delay, are subject to periodic review and may be revised once every five years. The primary aim of unification of private law as well as the new Montreal Convention is not only to remove or to minimize the conflict of laws but also to avoid conflict of jurisdictions. In order to find a rational solution to disputes between nations which have adopted differing liability systems in international air transport, we need fundamentally to reform their countries's domestic air law based on the new Montreal Convention. It is a desirable and necessary for us to ratify rapidly the new Montreal Convention by the contracting states of lCAO including the Republic of Korea. According to the Korean and Japanese ideas, airlines should not only pay compensation to passengers immediately after the accident, but also the so-called 'condolence' money to the next of kin. Condolence money is a gift to help a dead person's spirit in the hereafter : it is given on account of the grief and sorrow suffered by the next of kin, and it has risen considerably over the years. The total amount of the Korean and Japanese claims in the case of death is calculated on the basis of the loss of earned income, funeral expenses and material demage (baggage etc.), plus condolence money. The economic and social change will be occurred continuously after conclusion of the new Montreal Convention. In addition, the real value of life and human right will be enhanced substantially. The amount of compensation for damage caused by aircraft accident has increased in dollar amount as well as in volume. All air carrier's liability should extend to loss of expectation of leisure activities, as well as to damage to property, and mental and physical injuries. When victims are not satisfied with the amount of the compensation for damage caused by aircraft accident for which an airline corporation is liable under the current liability system. I also would like to propose my opinion that it is reasonable and necessary for us to interpret broadly the meaning of the bodily injury on Article 17 of the new Montreal Convention so as to be included the mental injury and condolence. Furthermore, Korea and Japan has not existed the Air Transport Act regulated the civil liability of air carrier such as Air Transport Act (Luftverkehrsgestz) in Germany. It is necessary for us to enact "the Korean Air Transport Contract Act (provisional title)" in order to regulate the civil liability of air carrier including the protection of the victims and injured persons caused by aircraft accident.

• Korean Journal of Heritage: History & Science
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• v.44 no.4
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• pp.172-205
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• 2011

Go bears significant meanings in terms of cultural and entertaining functions in Asia Eastern such as China and Japan. Beyond the mere entertaining level, it produces philosophical and mythic discourse as well. As a part of effort to seek an identity of Korean traditional garden culture, this study traced back to find meanings of rock-go-board and taste for the arts which ancestors pursued in playing Go game, through analysis and interpretation of correlation among origin of place name, nearby scenery, carved letters and vicinal handed-down place name. At the same time, their position, shape and location types were interpreted through comprehensive research and analysis of stone-go-boards including rock-go-board. Particularly, it focused on the rock names related to Sundoism(仙道) Ideal world, fixed due to a connection between traces of Sundoism and places in a folk etymology. Series of this work is to highlight features of the immortal sceneries, one of traditional landscaping ideals, by understanding place identity and scenic features of where the rock-go-boards are carved. These works are expected to become foundation for promotion and preservation of the traditional landscaping remains. The contents of this study could be summarized as follows; First, round stone and square board for round sky and angled land, black and white color for harmony of yin and yang and 361paths for rotating sky are symbols projecting order of universe. Sayings of Gyuljungjirak(橘中之樂), Sangsansaho(商山四皓), Nangagosa(爛柯故事) formed based on the idea of eternity stand for union of sky and sun. It indicates Go game which matches life and nature spatiotemporally and elegant taste for arts pursuing beauty and leisure. Second, the stone-go-boards found through this research, are 18 in total. 3 of those(16.1%), Gangjin Weolnamsaji, Yangsan Sohanjeong and Banryongdae ones were classified into movable Seokguk and 15(83.9%) including Banghakdong were turned out to be non-movable rock-go-boards carved on natural rocks. Third, upon the result of materializing location types of rock-go-boards, 15 are mountain stream type(83.9%) and 3 are rock peak type(16.1%). Among those, the one at Sobaeksam Sinseonbong is located at the highest place(1,389m). Considering the fact that all of 15 rock-go-boards were found at mountainous areas lower than 500m, it is recognizable that where the Go-boards are the parts of the living space, not far from secular world. Fourth, there are 7 Sunjang(巡將) Go with 17 Hwajeoms(花點), which is a traditional Go board type, but their existences, numbers and shapes of Hwajeom appear variously. Based on the fact, it is recognizable that culture of making go-board had been handed down for an extended period of time. Among the studied rock-goboards, the biggest one was Muju Sasunam[$80(82)cm{\times}80(82)cm$] while the smallest one was Yangsan Sohandjeong Seokguk ($40cm{\times}40cm$). The dimension of length and breadth are both $49cm{\times}48cm$ on average, which is realistic size for actual Go play. Fifth, the biggest bed rock, an under-masonry with carved Go-board on it, was one in Muju Sasunam[$8.7m{\times}7.5m(65.25m^2)$], followed by ones in Hoengseong Chuiseok[$7.8m{\times}6.3m(49.14m^2$] and Goisan Sungukam[$6.7m{\times}5.7m(37.14m^2)$]. Meanwhile, the smallest rock-go-board was turned out to be one in Seoul Banghak-dong. There was no consistency in directions of the Go-boards, which gives a hint that geographical features and sceneries of locations were considered first and then these were carved toward an optimal direction corresponding to the conditions. Sixth, rock-go-boards were all located in valleys and peaks of mountains with breathtaking scenery. It seems closely related to ancestors' taste for arts. Particularly, rock-go-boards are apprehended as facilities related to taste for arts for having leisure in many mountains and big streams under the idea of union of sky and human as a primitive communal line. Go became a medium of hermits, which is a traditional image of Go-game, and symbol of amusement and entertainment with the idea that Go is an essence of scholar culture enabling to reach the Tao of turning back to nature. Seventh, the further ancient time going back to, the more dreamlike the Go-boards are. It is an evident for that Sundoism, which used to be unacceptable once, became more visible and realistic. Considering the high relation between rock-go-boards and Sundoism relevant names such as Sundoism peak in Danyang Sobaeksan, 4 hermits rock in Muju and Sundoism hermit rock in Jangsu, Sundoism hermit rocks and rock-go-boards are sceneries and observation spots to express a communication of worship and longing for Sundoism. Eighth, 3 elements-physical environment such as location type of the rock-go-boards, human activities concentrated on 8 sceneries and Dongcheongugok(洞天九曲) setup and relevancy to Confucian scholars, as well as 'Sangsansaho' motif and 'Nangagosa' symbolic meaning were used as interpretation tools in order to judge the place identity. Upon the result, spatial investigation is required with respect to Sunyoodongcheon(仙遊洞天) concept based on enjoyment to unify with the nature rather than Dongcheongugok concept of neo-Confucian, for Dongcheon and Dongmoon(洞門) motives carved around the rock-go-boards. Generally, places where mountain stream type rock-go-boards were formed were hermit spaces of Confucianism or Sundoism. They are considered to have compromised one other with the change of times. Particularly, in the rock-go-board at the mountain peak, sublimity-oriented advent of Sundoism is considered as a significant factor to control place identity. Ninth, including where the rock-go-boards were established, the vicinal areas are well-known as parts of Dongcheongugok and Palkyung(八景) mostly. In addition, many of Sundoism relevant expressions were discovered even in the neighboring carvings written by scholars and nobility, which means sophisticated taste based on longing for Sundoism world played a significant role in making go-board. The rock-go-board is an integration of cultural phenomena naturally managed by seclusion of scholars in the Joseon Dynasty as well as remains and essence of Korean traditional landscaping. Some rock-go-boards out of 17 discovered in South Korea, including ones in Sobaeksan Sinsunbong, Banghak-dong, Chungju Gongili, Muju Sasunam, Yangsan Eogokdong Banryongdae Seokguk, are damaged such as cracks in rocks or fainted lines by hardships of time and hand stains. Worse yet, in case of Eunyang Bangudae Jipcheongjeong board, it is very difficult to identify the shape due to being buried. Rock-go-boards are valuable sculptures in terms of cultural asset and artwork since they reflect ancestors' love for nature and longing for Sundoism world. Therefore, they should be maintained properly with right preservation method. Not only rock-boards itself but also peripheral places are excellent cultural heritages and crucial cultural assets. In addition, vicinal sceneries of where rock-goboards and pavilion spots are the representative remains of embracing prototype of Korean traditional landscaping and major parts of cultural properties.