• Title/Summary/Keyword: Public Obligation

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A Study on the Maritime Law According to the Occurrence of Marine Accidents of MASS(Maritime Autonomous Surface Ship) (자율운항선박의 해양사고 발생에 따른 해상법적 고찰)

  • Lee, Young-Ju
    • Maritime Security
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    • v.6 no.1
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    • pp.37-56
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    • 2023
  • Recently, with the rapid development of ICT(Information and Communication Technology) and AI(Artificial Intelligence) technology industries, the emergence of MASS(Maritime Autonomous Surface Ship), which were thought only in the distant future, is approaching a reality. Along with the development of these amazing technologies, changes in the private law sector, such as liability, compensation for damages, and maritime insurance, as well as in the public law sector, such as maritime safety, marine environment protection, and maintenance of maritime order, have become necessary in the field of maritime law. In particular, with the advent of a new type of ship called MASS that does not have a crew on board, the kind and type of liability, compensation for damages, and insurance contracts in the event of a marine accident will also change. In this paper, the general theory about concept, classification, effectiveness and future of MASS and the general theory about concept and various obligations and responsibilities under the maritime law for discussion of MASS are reviewed. Next, in addition, regarding the problems that may occur in the event of a marine accident from MASS, the status as a ship, the legal relationship of the chartering contract, obligation to exercise due diligence in making the vessel seaworthiness, subject of responsibility, and liability for damages and immunity are reviewed from the perspective of maritime law. In addition, in the degree four of MASS, the necessities of further research to clarify the attributable subjects and standards of responsibility in the event of a marine accident, as well as the necessities of institutional improvement such as technology development, enactment and amendment of law and funding are presented.

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The Possibility of Application of the US CASA Program in Korea - Focusing on comparison of child protection service between USA and Korea (한국에서의 미국 CASA프로그램 적용 가능성 탐색 - 미국과 한국의 아동보호서비스 비교를 중심으로)

  • Sunghae Park
    • Korean Journal of Culture and Social Issue
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    • v.24 no.3
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    • pp.473-489
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    • 2018
  • Our society has an obligation and responsibility to respect and protect the character of the child. Recently, however, Korean society has been suffering from child abuse and abuse that is pouring out every day. In order to protect these children, the child protection system and the judicial system should be fundamentally child-friendly. The CASA(Court Appointed Special Advocates) volunteer program, which is being held in the United States with such a concern, is a continuing program of court attendance and emotional support services for abused children throughout the United States. In Korea, however, there are many similar programs such as mentoring projects, dream co-supporters project similar to the CASA program in various organizations of the region and the enactment of the Act on the Punishment of Child Abuse increases the involvement of the public system in child abuse. There is also an increased awareness of children's rights and strengthened government intervention through active monitoring to prevent recurrence of child abuse. These changes in the Korean society should be actively reviewed by the US CASA program and settled as a national project in the Korean society so that the system of protecting the safety and rights of the victims of child abuse will be established. It is anticipated to be a way to prevent social problems from occurring in advance.

The assessment of Seoul City school sheriff system and developmental expansion plan - Around the righteousness proof of the security industry law application - (서울시 학교보안관 제도의 평가와 발전적 확대방안 - 경비업법 적용의 당위성 논증을 중심으로 -)

  • Lee, Sang-Hun
    • Korean Security Journal
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    • no.29
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    • pp.163-191
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    • 2011
  • Recently, the problems in school violence did not stop on the crime between the members at the school and which developed into the invasion crime of the school caused by outsiders. The school is no more the safety zone from the crime. Particularly, in the case of the elementary school, because there are nearly no people who oppose to the outside attacker and can control this, it is the place where it is vulnerable to the invasion crime. The Metropolis of Seoul implements the School Sheriff system within the jurisdiction bureau, in the public elementary school. However, actually the School Sheriff business is being managed, never applying a rule in the Security Industry Law with the main content, that is the Security Industry Law application is excluded. Because the jurisdiction on the contract of Seoul City and operating company are run, the various issues is caused. First, since it is not being considered as a security business, the commercial liability insurance for security company has no chance to applicate when the operation company and the School Sheriff have related damage generation. So the security for the indemnification of loss of the victim is weak. Second, The task of the School Sheriff is ruled just by in the individual contracts. But it is insufficient with this thing. The related duties are required some supplement like a general rule application including the obligation of the guard in the security industry law. Third, the education of the School Sheriff needs to connect with the educational programme in the security industry law. The related professional education specially needed for the prevention of school violence ought to be reserved compensation. Forth, the citizens still demand the strengthening of police patrol for the surroundings of a school in spite of the result of Seoul City's public survey. Therefore, the active relation of cooperation with the police needs to be supported legally and institutionally with the Security Industry Law application. Fifthly, the success of the School Sheriff business can be more guaranteed with the supervision of the legal and institutional device like a the Security Industry Law application or police and all sorts of administrative execution's and etc.

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Innovative approaches to the health problems of rural Korea (한국농촌보건(韓國農村保健)의 문제점(問題點)과 개선방안(改善方案))

  • Loh, In-Kyu
    • Journal of agricultural medicine and community health
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    • v.1 no.1
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    • pp.5-9
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    • 1976
  • The categories of national health problems may be mainly divided into health promotion, problems of diseases, and population-economic problems which are indirectly related to health. Of them, the problems of diseases will be exclusively dealt with this speech. Rurality and Disease Problems There are many differences between rural and urban areas. In general, indicators of rurality are small size of towns, dispersion of the population, remoteness from urban centers, inadequacy of public transportation, poor communication, inadequate sanitation, poor housing, poverty, little education lack of health personnels and facilities, and in-accessibility to health services. The influence of such conditions creates, directly or indirectly, many problems of diseases in the rural areas. Those art the occurrence of preventable diseases, deterioration and prolongation of illness due to loss of chance to get early treatment, decreased or prolonged labour force loss, unnecessary death, doubling of medical cost, and economic loss. Some Considerations of Innovative Approach The followings art some considerations of innovative approaches to the problems of diseases in the rural Korea. 1. It would be essential goal of the innovative approaches that the damage and economic loss due to diseases will be maintained to minimum level by minimizing the absolute amount of the diseases, and by moderating the fee for medical cares. The goal of the minimization of the disease amount may be achieved by preventive services and early treatment, and the goal of moderating the medical fee may be achieved by lowering the prime cost and by adjusting the medical fees to reasonable level. 2. Community health service or community medicine will be adopted as a innovative means to disease problems. In this case, a community is defined as an unit area where supply and utilization of primary service activities can be accomplished within a day. The essential nature o the community health service should be such activities as health promotion, preventive measures, medical care, and rehabilitation performing efficiently through the organized efforts of the residents in a community. Each service activity should cover all members of the residents in a community in its plan and performance. The cooperation of the community peoples in one of the essential elements for success of the service program, The motivations of their cooperative mood may be activated through several ways: when the participation of the residents in service program of especially the direct participation of organized cooperation of the area leaders art achieved through a means of health education: when the residents get actual experience of having received the benefit of good quality services; and when the health personnels being armed with an idealism that they art working in the areas to help health problems of the residents, maintain good human relationships with them. For the success of a community health service program, a personnel who is in charge of leadership and has an able, a sincere and a steady characters seems to be required in a community. The government should lead and support the community health service programs of the nation under the basis of results appeared in the demonstrative programs so as to be carried out the programs efficiently. Moss of the health problems may be treated properly in the community levels through suitable community health service programs but there might be some problems which art beyond their abilities to be dealt with. To solve such problems each community health service program should be under the referral systems which are connected with health centers, hospitals, and so forth. 3. An approach should be intensively groped to have a physician in each community. The shortage of physicians in rural areas is world-wide problem and so is the Korean situation. In the past the government has initiated a system of area-limited physician, coercion, and a small scale of scholarship program with unsatisfactory results. But there might be ways of achieving the goal by intervice, broadened, and continuous approaches. There will be several ways of approach to motivate the physicians to be settled in a rural community. They are, for examples, to expos the students to the community health service programs during training, to be run community health service programs by every health or medical schools and other main medical facilities, communication activities and advertisement, desire of community peoples to invite a physician, scholarship program, payment of satisfactory level, fulfilment of military obligation in case of a future draft, economic growth and development of rural communities, sufficiency of health and medical facilities, provision of proper medical care system, coercion, and so forth. And, hopefully, more useful reference data on the motivations may be available when a survey be conducted to the physicians who are presently engaging in the rural community levels. 4. In communities where the availability of a physician is difficult, a trial to use physician extenders, under certain conditions, may be considered. The reason is that it would be beneficial for the health of the residents to give them the remedies of primary medical care through the extenders rather than to leave their medical problems out of management. The followings are the conditions to be considered when the physician extenders are used: their positions will be prescribed as a temporary one instead of permanent one so as to allow easy replacement of the position with a physician applicant; the extender will be under periodic direction and supervision of a physician, and also referral channel will be provided: legal constraints will be placed upon the extenders primary care practice, and the physician extenders will used only under the public medical care system. 5. For the balanced health care delivery, a greater investment to the rural areas is needed to compensate weak points of a rurality. The characteristics of a rurality has been already mentioned. The objective of balanced service for rural communities to level up that of urban areas will be hard to achieve without greater efforts and supports. For example, rural communities need mobile powers more than urban areas, communication network is extremely necessary at health delivery facilities in rural areas as well as the need of urban areas, health and medical facilities in rural areas should be provided more substantially than those of urban areas to minimize, in a sense, the amount of patient consultation and request of laboratory specimens through referral system of which procedures are more troublesome in rural areas, and more intensive control measures against communicable diseases are needed in rural areas where greater numbers of cases are occurred under the poor sanitary conditions.

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The Obligation of Return Unjust Enrichment or Compensation for the Use of Flight Safety Zone -Seoul High Court Judgment 2018Na2034474, decided on 2018. 10. 11.- (비행안전구역의 사용에 대한 부당이득반환·손실 보상 의무의 존부 -서울고등법원 2018. 10. 11. 선고 2018나2034474 판결-)

  • Kwon, Chang-Young;Park, Soo-Jin
    • The Korean Journal of Air & Space Law and Policy
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    • v.35 no.1
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    • pp.63-101
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    • 2020
  • 'Flight safety zone' means a zone that the Minister of National Defense designates under Articles 4 and 6 of the Protection of Military Bases and Installations Act (hereinafter 'PMBIA') for the safety of flight during takeoff and landing of military aircrafts. The purpose of flight safety zone is to contribute to the national security by providing necessary measures for the protection of military bases and installations and smooth conduct of military operations. In this case, when the state set and used the flight safety zone, the landowner claimed restitution of unjust enrichment against the country. This article is an analysis based on the existing legal theory regarding the legitimacy of plaintiff's claim, and the summary of the discussion is as follows. A person who without any legal ground derives a benefit from the property or services of another and thereby causes loss to the latter shall be bound to return such benefit (Article 741 of the Civil Act). Since the subject matter is an infringing profit, the defendant must prove that he has a legitimate right to retain the profit. The State reserves the right to use over the land designated as a flight safety zone in accordance with legitimate procedures established by the PMBIA for the safe takeoff and landing of military aircrafts. Therefore, it cannot be said that the State gained an unjust enrichment equivalent to the rent over the land without legal cause. Expropriation, use or restriction of private property from public necessity and compensation therefor shall be governed by Act: provided, that in such a case, just compensation shall be paid (Article 23 (1) of the Constitution of The Republic of KOREA). Since there is not any provision in the PMBIA for loss compensation for the case where a flight safety zone is set over land as in this case, next question would be whether or not it is unconstitutional. Even if it is designated as a flight safety zone and the use and profits of the land are limited, the justification of the purpose of the flight safety zone system, the appropriateness of the means, the minimization of infringement, and the balance of legal interests are still recognized; thus just not having any loss compensation clause does not make the act unconstitutional. In conclusion, plaintiff's claim for loss compensation based on the 'Act on Acquisition of and Compensation for land, etc. for Public Works Projects', which has no provision for loss compensation due to public limits, is unjust.

A Study for Improvement of Nursing Service Administration (병원 간호행정 개선을 위한 연구)

  • 박정호
    • Journal of Korean Academy of Nursing
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    • v.3 no.1
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    • pp.13-40
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    • 1972
  • Much has teed changed in the field of hospital administration in the It wake of the rapid development of sciences, techniques ana systematic hospital management. However, we still have a long way to go in organization, in the quality of hospital employees and hospital equipment and facilities, and in financial support in order to achieve proper hospital management. The above factors greatly effect the ability of hospitals to fulfill their obligation in patient care and nursing services. The purpose of this study is to determine the optimal methods of standardization and quality nursing so as to improve present nursing services through investigations and analyses of various problems concerning nursing administration. This study has been undertaken during the six month period from October 1971 to March 1972. The 41 comprehensive hospitals have been selected iron amongst the 139 in the whole country. These have been categorized according-to the specific purposes of their establishment, such as 7 university hospitals, 18 national or public hospitals, 12 religious hospitals and 4 enterprise ones. The following conclusions have been acquired thus far from information obtained through interviews with nursing directors who are in charge of the nursing administration in each hospital, and further investigations concerning the purposes of establishment, the organization, personnel arrangements, working conditions, practices of service, and budgets of the nursing service department. 1. The nursing administration along with its activities in this country has been uncritical1y adopted from that of the developed countries. It is necessary for us to re-establish a new medical and nursing system which is adequate for our social environments through continuous study and research. 2. The survey shows that the 7 university hospitals were chiefly concerned with education, medical care and research; the 18 national or public hospitals with medical care, public health and charity work; the 2 religious hospitals with medical care, charity and missionary works; and the 4 enterprise hospitals with public health, medical care and charity works. In general, the main purposes of the hospitals were those of charity organizations in the pursuit of medical care, education and public benefits. 3. The survey shows that in general hospital facilities rate 64 per cent and medical care 60 per-cent against a 100 per cent optimum basis in accordance with the medical treatment law and approved criteria for training hospitals. In these respects, university hospitals have achieved the highest standards, followed by religious ones, enterprise ones, and national or public ones in that order. 4. The ages of nursing directors range from 30 to 50. The level of education achieved by most of the directors is that of graduation from a nursing technical high school and a three year nursing junior college; a very few have graduated from college or have taken graduate courses. 5. As for the career tenure of nurses in the hospitals: one-third of the nurses, or 38 per cent, have worked less than one year; those in the category of one year to two represent 24 pet cent. This means that a total of 62 per cent of the career nurses have been practicing their profession for less than two years. Career nurses with over 5 years experience number only 16 per cent: therefore the efficiency of nursing services has been rated very low. 6. As for the standard of education of the nurses: 62 per cent of them have taken a three year course of nursing in junior colleges, and 22 per cent in nursing technical high schools. College graduate nurses come up to only 15 per cent; and those with graduate course only 0.4 per cent. This indicates that most of the nurses are front nursing technical high schools and three year nursing junior colleges. Accordingly, it is advisable that nursing services be divided according to their functions, such as professional, technical nurses and nurse's aides. 7. The survey also shows that the purpose of nursing service administration in the hospitals has been regulated in writing in 74 per cent of the hospitals and not regulated in writing in 26 per cent of the hospitals. The general purposes of nursing are as follows: patient care, assistance in medical care and education. The main purpose of these nursing services is to establish proper operational and personnel management which focus on in-service education. 8. The nursing service departments belong to the medical departments in almost 60 per cent of the hospitals. Even though the nursing service department is formally separated, about 24 per cent of the hospitals regard it as a functional unit in the medical department. Only 5 per cent of the hospitals keep the department as a separate one. To the contrary, approximately 12 per cent of the hospitals have not established a nursing service department at all but surbodinate it to the other department. In this respect, it is required that a new hospital organization be made to acknowledge the independent function of the nursing department. In 76 per cent of the hospitals they have advisory committees under the nursing department, such as a dormitory self·regulating committee, an in-service education committee and a nursing procedure and policy committee. 9. Personnel arrangement and working conditions of nurses 1) The ratio of nurses to patients is as follows: In university hospitals, 1 to 2.9 for hospitalized patients and 1 to 4.0 for out-patients; in religious hospitals, 1 to 2.3 for hospitalized patients and 1 to 5.4 for out-patients. Grouped together this indicates that one nurse covers 2.2 hospitalized patients and 4.3 out-patients on a daily basis. The current medical treatment law stipulates that one nurse should care for 2.5 hospitalized patients or 30.0 out-patients. Therefore the statistics indicate that nursing services are being peformed with an insufficient number of nurses to cover out-patients. The current law concerns the minimum number of nurses and disregards the required number of nurses for operation rooms, recovery rooms, delivery rooms, new-born baby rooms, central supply rooms and emergency rooms. Accordingly, tile medical treatment law has been requested to be amended. 2) The ratio of doctors to nurses: In university hospitals, the ratio is 1 to 1.1; in national of public hospitals, 1 to 0.8; in religious hospitals 1 to 0.5; and in private hospitals 1 to 0.7. The average ratio is 1 to 0.8; generally the ideal ratio is 3 to 1. Since the number of doctors working in hospitals has been recently increasing, the nursing services have consequently teen overloaded, sacrificing the services to the patients. 3) The ratio of nurses to clerical staff is 1 to 0.4. However, the ideal ratio is 5 to 1, that is, 1 to 0.2. This means that clerical personnel far outnumber the nursing staff. 4) The ratio of nurses to nurse's-aides; The average 2.5 to 1 indicates that most of the nursing service are delegated to nurse's-aides owing to the shortage of registered nurses. This is the main cause of the deterioration in the quality of nursing services. It is a real problem in the guest for better nursing services that certain hospitals employ a disproportionate number of nurse's-aides in order to meet financial requirements. 5) As for the working conditions, most of hospitals employ a three-shift day with 8 hours of duty each. However, certain hospitals still use two shifts a day. 6) As for the working environment, most of the hospitals lack welfare and hygienic facilities. 7) The salary basis is the highest in the private university hospitals, with enterprise hospitals next and religious hospitals and national or public ones lowest. 8) Method of employment is made through paper screening, and further that the appointment of nurses is conditional upon the favorable opinion of the nursing directors. 9) The unemployment ratio for one year in 1971 averaged 29 per cent. The reasons for unemployment indicate that the highest is because of marriage up to 40 per cent, and next is because of overseas employment. This high unemployment ratio further causes the deterioration of efficiency in nursing services and supplementary activities. The hospital authorities concerned should take this matter into a jeep consideration in order to reduce unemployment. 10) The importance of in-service education is well recognized and established. 1% has been noted that on the-job nurses. training has been most active, with nursing directors taking charge of the orientation programs of newly employed nurses. However, it is most necessary that a comprehensive study be made of instructors, contents and methods of education with a separate section for in-service education. 10. Nursing services'activities 1) Division of services and job descriptions are urgently required. 81 per rent of the hospitals keep written regulations of services in accordance with nursing service manuals. 19 per cent of the hospitals do not keep written regulations. Most of hospitals delegate to the nursing directors or certain supervisors the power of stipulating service regulations. In 21 per cent of the total hospitals they have policy committees, standardization committees and advisory committees to proceed with the stipulation of regulations. 2) Approximately 81 per cent of the hospitals have service channels in which directors, supervisors, head nurses and staff nurses perform their appropriate services according to the service plans and make up the service reports. In approximately 19 per cent of the hospitals the staff perform their nursing services without utilizing the above channels. 3) In the performance of nursing services, a ward manual is considered the most important one to be utilized in about 32 percent of hospitals. 25 per cent of hospitals indicate they use a kardex; 17 per cent use ward-rounding, and others take advantage of work sheets or coordination with other departments through conferences. 4) In about 78 per cent of hospitals they have records which indicate the status of personnel, and in 22 per cent they have not. 5) It has been advised that morale among nurses may be increased, ensuring more efficient services, by their being able to exchange opinions and views with each other. 6) The satisfactory performance of nursing services rely on the following factors to the degree indicated: approximately 32 per cent to the systematic nursing activities and services; 27 per cent to the head nurses ability for nursing diagnosis; 22 per cent to an effective supervisory system; 16 per cent to the hospital facilities and proper supply, and 3 per cent to effective in·service education. This means that nurses, supervisors, head nurses and directors play the most important roles in the performance of nursing services. 11. About 87 per cent of the hospitals do not have separate budgets for their nursing departments, and only 13 per cent of the hospitals have separate budgets. It is recommended that the planning and execution of the nursing administration be delegated to the pertinent administrators in order to bring about improved proved performances and activities in nursing services.

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The Significance of Registration Convention and its Future Challenges in Space Law (등록협약의 우주법상 의의와 미래과제에 관한 연구)

  • Kim, Han-Taek
    • The Korean Journal of Air & Space Law and Policy
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    • v.35 no.2
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    • pp.375-402
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    • 2020
  • The adoption and entering into force of the Registration Convention was another achievement in expanding and strengthening the corpus iuris spatialis. It was the fourth treaty negotiated by the member states of the UNCOPUOS and it elaborates further Articles 5 and 8 of the Outer Space Treaty(OST). The Registration Convention also complements and strengthens the Article 11 of the OST, which stipulates an obligation of state parties to inform the UN Secretary-General of the nature, conduct, locations, and results of their space activities in order to promote international cooperation. The prevailing purposes of the Registration Convention is the clarification of "jurisdiction and control" as a comprehensive concept mentioned in Article 5 8 of the OST. In addition to its overriding objective, the Registration Convention also contributes to the promotion and the exploration and use of outer space for peaceful purposes. Establishing and maintaining a public register reduces the possibility of the existence of unidentified space objects and thereby lowers the risk such as, for example, putting the weapons of mass destruction secretly into orbit. And furthermore it could serve for a better space traffic management. The Registration Convention is a treaty established to implement Article 5 of OST for the rescue and return of astronaut in more detail. In this respect, if OST is a general law, the Registration Convention would be said to be in a special law. If two laws conflict the principle of lex specialis will be applied. Countries that have not joined the Registration Convention will have to follow the rules concerning the registration of paragraph 7 of the Declaration by the United Nations General Assembly resolution 1721 (X V I) in 1961. UN Resolution 1721 (XVI) is essentially non-binding, but appears to have evolved into the norm of customary international law requiring all States launching space objects into orbit or beyond to promptly provide information about their launchings for registration to the United Nations. However, the nature and scope of the information to be supplied is left to the discretion of the notifying State. The Registration Convention is a treaty created for compulsory registration of space objects by nations, but in reality it is a treaty that does not deviate from existing practice because it is based on voluntary registration. With the situation of dealing with new problems due to the commercialization and privatization of the space market, issues related to the definition of a 'space object', including matter of the registry state of new state that purchased space objects and space debris matter caused by the suspension of space objects launched by the registry state should be considered as matters when amendments, additional protocols or new Registration Convention are established. Also the question of registration of a flight vehicle in the commercial space market using a space vehicle traveling in a sub-orbital in a short time should be considered.

Interpretation of the Umbrella Clause in Investment Treaties (국제투자조약상 포괄적 보호조항(Umbrella Clauses)의 해석에 관한 연구)

  • Jo, Hee-Moon
    • Journal of Arbitration Studies
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    • v.19 no.2
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    • pp.95-126
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    • 2009
  • One of the controversial issues in investor-state investment arbitration is the interpretation of "umbrella clause" that is found in most BIT and FTAs. This treaty clause requires on Contracting State of treaty to observe all investment obligations entered into with foreign investors from the other Contracting State. This clause did not receive in-depth attention until SGS v. Pakistan and SGS v. Philippines cases produced starkly different conclusions on the relations about treaty-based jurisdiction and contract-based jurisdiction. More recent decisions by other arbitral tribunals continue to show different approaches in their interpretation of umbrella clauses. Following the SGS v. Philippines decision, some recent decisions understand that all contracts are covered by umbrella clause, for example, in Siemens A.G. v. Argentina, LG&E Energy Corp. v. Argentina, Sempra Energy Int'l v. Argentina and Enron Corp. V. Argentina. However, other recent decisions have found a different approach that only certain kinds of public contracts are covered by umbrella clauses, for example, in El Paso Energy Int'l Co. v. Argentina, Pan American Energy LLC v. Argentina and CMS Gas Transmission Co. v. Argentina. With relation to the exhaustion of domestic remedies, most of tribunals have the position that the contractual remedy should not affect the jurisdiction of BIT tribunal. Even some tribunals considered that there is no need to exhaust contract remedies before bringing BIT arbitration, provoking suspicion of the validity of sanctity of contract in front of treaty obligation. The decision of the Annulment Committee In CMS case in 2007 was an extraordinarily surprising one and poured oil on the debate. The Committee composed of the three respected international lawyers, Gilbert Guillaume and Nabil Elaraby, both from the ICJ, and professor James Crawford, the Rapportuer of the International Law Commission on the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, observed that the arbitral tribunal made critical errors of law, however, noting that it has limited power to review and overturn the award. The position of the Committee was a direct attack on ICSID system showing as an internal recognition of ICSID itself that the current system of investor-state arbitration is problematic. States are coming to limit the scope of umbrella clauses. For example, the 2004 U.S. Model BIT detailed definition of the type of contracts for which breach of contract claims may be submitted to arbitration, to increase certainty and predictability. Latin American countries, in particular, Argentina, are feeling collectively victims of these pro-investor interpretations of the ICSID tribunals. In fact, BIT between developed and developing countries are negotiated to protect foreign investment from developing countries. This general characteristic of BIT reflects naturally on the provisions making them extremely protective for foreign investors. Naturally, developing countries seek to interpret restrictively BIT provisions, whereas developed countries try to interpret more expansively. As most of cases arising out of alleged violation of BIT are administered in the ICSID, a forum under the auspices of the World Bank, these Latin American countries have been raising the legitimacy deficit of the ICSID. The Argentine cases have been provoking many legal issues of international law, predicting crisis almost coming in actual investor-state arbitration system. Some Latin American countries, such as Bolivia, Venezuela, Ecuador, Argentina, already showed their dissatisfaction with the ICSID system considering withdrawing from it to minimize the eventual investor-state dispute. Thus the disagreement over umbrella clauses in their interpretation is becoming interpreted as an historical reflection on the continued tension between developing and developed countries on foreign investment. There is an academic and political discussion on the possible return of the Calvo Doctrine in Latin America. The paper will comment on these problems related to the interpretation of umbrella clause. The paper analyses ICSID cases involving principally Latin American countries to identify the critical legal issues arising between developing and developed countries. And the paper discusses alternatives in improving actual investor-State investment arbitration; inter alia, the introduction of an appellate system and treaty interpretation rules.

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New attempt on the Autonomous Vehicles Act based on criminal responsibility (자율주행자동차 사고시 형사책임에 따른 '자율주행자동차의 운행과 책임에 관한 법률안' 시도)

  • Lee, Seung-jun
    • Journal of Legislation Research
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    • no.53
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    • pp.593-631
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    • 2017
  • Like the technological competition of each country around commercialization of Autonomous Vehicles(the rest is 'AV'), legalizations are also in a competition. However, in the midst of this competition, the Ethik-Kommission Automatisiertes und vernetztes Fahren of Germany has recently introduced 20 guidelines. This guideline is expected to serve as a milestone for future AV legislations. In this paper, I have formulated a new legislative proposal that will incorporate the main content presented by the Ethik-Kommission. The structure is largely divided into general rules of purpose and definition, chapter on types of AV and safety standards, registration and inspection, maintenance, licenses for AV, driver's obligations, insurance and accident responsibilities, roads and facilities, traffic system, and chapter on penalties. The commercialization of AV in Korea seems to be in a distant future, and it is possible to pretend that it is not necessary to prepare legal systems. But considering our reality, leading legislation may be necessary. In this paper, I have prepared individual legislative proposals based on the essential matters based on the criminal responsibility in case of AV car accidents. To assure the safety of AV, AV and mode of operation were defined for more clear interpretation and application of law, and basic safety standards for AV were presented. In addition, the obligation of insurance and the liability for damages were defined, and the possibility of immunity from the criminal responsibility was examined. Furthermore, I have examined the penalties for penalties such as hacking in order to secure the effectiveness of the Act. Based on these discussions, I have attempted the 'Autonomous Vehicles Act', which aims to provide a basis for new discussions to be held on the basis of various academic fields related to the operation of AV and related industries in the future. Although there may be a sense of unurgency in time, the automobile industry needs time to prepare for the regulation of the AV ahead of time. And a process of public debate is also needed for the ecosystem of healthy AV industry.

Liabilities of Air Carrier Who Sponsored Financially Troubled Affiliate Shipping Company (항공사(航空社)의 부실 계열 해운사(海運社) 지원에 따른 법적 책임문제)

  • Choi, June-Sun
    • The Korean Journal of Air & Space Law and Policy
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    • v.32 no.1
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    • pp.177-200
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    • 2017
  • This writer have thus far reviewed the civil and criminal obligations of the directors of a parent company that sponsored financially troubled affiliates. What was discussed here applies to logistics companies in the same manner. Hanjin Shipping cannot expect its parent company, Korean Air to prop it up financially. If such financial aid is offered without any collateral, under Korean criminal law, the directors of the parent company bears the burden of civil and criminal responsibility. One way to get around this is to secure fairness in terms of the process and the content of aid. Fairness in terms of process refers to the board of directors making public all information and approving such aid. Fairness in terms of content refers to impartial transactions that block out any possibilities of the chairman of the corporate group acting in his private interest. In the case of Korean Air bailing out Hanjin, the meeting of board of directors were held five times and a thorough review was conducted on the risks involved in the loans being repaid or not. After the review, measures to guard against undesirable scenarios were established before finally deciding on bailing out Hanjin. As such, there are no issues. In terms of the fairness of content, too, there were practically no room for the majority shareholder or controlling shareholder to pocket profits at the expense of the company. This is because the continued aid offered to a financially troubled company (i.e. Hanjin Shipping) was a posing a burden to even the controlling shareholder. This writer argues that the concept of the interest of the entire corporate group needs to be recognized. That is, it must be recognized that the relationship of control and being controlled between parent company and affiliate company, or between affiliate companies serves a practical benefit to the ongoing concern and growth of the group and is therefore just. Moreover, the corporate group and its affiliates, as well as their directors and management must recognize that they have an obligation to prioritize the interests of the corporate group ahead of the interests of the company that they are directly associated with. As such, even if Korean Air offered a loan to Hanjin Shipping without collateral, the act cannot be treated as an offense to law, nor can the directors be accused of damages that they bear the responsibility of compensating under civil law.

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