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A Study on Arbitration Qualification of Intellectual Property Right Dispute - Focus on Korea and China - (지적재산권분쟁의 중재적격에 관한 연구 -한국과 중국을 중심으로-)

  • Choi, Song-Za
    • Journal of Arbitration Studies
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    • v.21 no.2
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    • pp.27-46
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    • 2011
  • In the intellectual based society of the 21th century, intellectual property of nation and enterprise management has been the key element of nation's competitiveness and development. Therefore in countries like Korea, China, and many other countries, intellectual property of advancement strategy are being constructed and intellectual properties are protected at national level. Top priority task of protecting the intellectual property is to efficiently resolute intellectual property right disputes. Considering the nature of intellectual property right and arbitrage system, arbitration to solve intellectual property disputes is realistically the best method. However, not all cases of them are qualified. In order to relieve the intellectual property disputes through arbitration, qualification must be obtained. During the process, generally and globally, intellectual property right dispute is evaluated by three parts, intellectual property right contract dispute, intellectual property right violation dispute, and intellectual property right validity dispute. Based on UN's "Convention on the Recognition and Enforcement of Foreign Arbitral Awards Agreement" in 1958, June 10th, in New York, both arbitrage organization and judgment can be approved in both Korea and China countries. However, as of today, there is a big gap of arbitration qualification between two countries, which can be troublesome if intellectual property right disputes arise. For instance, in Korea, intellectual property right contract disputes and intellectual property right violation disputes are both generally accepted as arbitration qualification. However for intellectual property right validity dispute, arbitration qualification is only accepted for non-registered intellectual property as in copyright entity. It does not apply to other registered intellectual property right as in patents. In China, arbitration qualification is accepted for intellectual property right contract dispute, and also accepted for intellectual property right violation dispute to copyrights but restricted to others. As for intellectual property right validity dispute, arbitration qualification is completely denied. Therefore, when there is an intellectual property right dispute between Korea and China, the biggest problem is whether China will accept arbitrage judgments made in Korea. Theoretically, arbitrage judgement made in Korea should be also accepted in China's court. However, considering the criticism of China's passive nature of arbitration qualification for its own local intellectual property right disputes, it's very unlikely they'll actively accept arbitrary judgment made in foreign countries. Korea and China must have a more open minded approach for intellectual property disputes and arbitration qualification. Base on WTO's Intellectual Property Right Agreement, it's being defined as private right. Therefore, sovereign principle should be the basic principle of solving intellectual property right disputes. Currently, arbitration qualification is expanding internationally. So both Korea and China must also follow the trend expand the arbitration qualification with a more open minded and forward looking approach, for the good of intellectual property disputes.

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A Study on the Limits in the Use of Force against a Hijacked Civil Aircraft (피랍 민간항공기에 대한 무력행사의 한계에 관한 연구)

  • Kim, Man-Ho
    • The Korean Journal of Air & Space Law and Policy
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    • v.19 no.1
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    • pp.141-163
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    • 2004
  • The limits in the use of force against a civil aircraft which intrudes into sovereign airspace have not been defined in the aspect of international law. Therefore, this paper intends to analyze international laws and practices about sovereign airspace intrusions by the civil aircraft, and to examine the legality in the use of force against the civil aircraft hijacked by means of political terrorism, in particular. In this paper, the sphere of study is restricted within the problems of interception against the civil aircraft which intrudes into sovereign airspace in times of peace, excluding the problems against a state aircraft, and the responsibilities for the civil or criminal affairs due to interceptions. Herein this paper analyzes the existing international laws and the cases of each nation's use of force against the civil aircraft which intrudes into sovereign airspace, and organizes the conditions in the use of force which have been accepted in international laws and practices, and then applies them to the special case of civil aircraft hijacked by political terrorism. Consequently, this paper suggests that the basic principles of necessity, ultimateness, and proportionality be taken into consideration in the use of force against civil aircraft which intrudes into sovereign airspace. This study finally suggests that the possibility in the use of force against civil aircraft hijacked by political terrorism might be higher than any type of civil aircraft intrusions into sovereign airspace due to the factor of necessity of national security concerned.

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A study on the Institutional Characteristics of Artisanal Fisheries (입어관행과 관행어업의 제도적 성격에 관한 고찰)

  • 김병호
    • The Journal of Fisheries Business Administration
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    • v.27 no.2
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    • pp.51-63
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    • 1996
  • This study is concerned with the identification of the concepts and characteristics of the traditional access of small scale fishery and traditional small scale fishery based on the classification of fisheries under Fisheries Law, As we called, these fisheries are the small scale of artisanal fisheries. These traditional small scale of artisanal fisheries have been developed throughout the most coastal fisheries but have never been included the institutional fishery system and policy since industrial fisheries have been exploited. By this reason there was no studies to understand and identify these fisheries as fisheries under category of institutional fishery system. Recently by the Fisheries Law, my Person who desires to operate these fisheries, shall report to the provincial governor and then these fisheries were incorporated into the category of fisheries to be reported. But this case of the administrative practices should be not consistent with the classification of fisheries under Fisheries Law. The traditional access of small scale fishery is a derivative concept of fishery categories under the institutional fakery system Because this fishery under institutional fishery system can not be establish the right of fishing by fishery right system technically but the right of fishing is supported by the fishing access system only. Therefore, It is a mistake for the provincial fishery governor to adopt such a policy that the fishing right of the traditional access of small scale fishery which is different from the fishing based right is restricted by the factors of fisheries to be reported. On the other hand the traditional small scale fishery is coincident with the traditional access of small scale fishery and the common fishery under the style of utilization of fishing gear and fishing gear and methods. But this fishery has never been included the fishery categories supported by the government subsidy policies and considerations and has been remained with indifference during the last few decades. Anyhow the fishing right of these fisheries have been assured under the institutional fishery system, any person who desires to operate this fishery should have a fishing right against the public or private uses of fishing ground such as land reclamations and other coastal zone development. A deprivation of the fishing right of this fishery by the conflicts of these public and private uses of fishing ground is not regarded as appropriate according to the social welfare policy. Also it is the administrative expediency to support the fishing right of this fishery under the fisheries lobe reported.

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A Study on a Legitimate Plaintiff in Cases Involving a State Request for a Right of Reply (반론보도청구사건에 있어 국가기관의 당사자 적격에 관한 고찰)

  • Yoo, Jae-Woong
    • Korean journal of communication and information
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    • v.21
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    • pp.147-175
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    • 2003
  • This study is primarily concerned with the criteria for choosing a legitimate state plaintiff in cases involving a states request to media for a right of reply. Interpretation of the right of reply itself is different from country to country because of different constitutional views and systems in each state. Unlike the United States, the constitution of the Republic of Korea does not expressly prohibit the making of laws adversely affecting freedom of the press. Accordingly, in Korea freedom of the press may be restricted through legislation within certain limits and the right of reply is not incompatible with the spirit of the constitution. An analysis of relevant law makes it clear that the particular agency aggrieved should initiate the suit rather than the Justice Minister. The idea that the Justice Minister should assume the role of plaintiff in all state cases seems to stem from flawed interpretations of provisions in the Law Governing Registration of Periodicals and the Law Governing Litigation Involving the State. Even though each state agency has the right of reply, it should be cautioned not to abuse it as the states frequent involvement in litigation may bring on unnecessary misunderstanding and have a chilling effect on the media. The right of reply does not always imply that a certain media report in question is wrong and the media should be sanctioned for it. The right of reply is basically intended to help the general public make an informed judgment on issues presented in the media and insure fairness and balance.

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Evaluation on Park Planning of Provincial Parks among Korea Natural Parks (자연공원 유형중 도립공원 계획의 평가)

  • Cho, Woo
    • Korean Journal of Environment and Ecology
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    • v.33 no.3
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    • pp.321-332
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    • 2019
  • The purpose of this study is to identify the problems and present the improvement measures by assessing the suitability of planning of provincial natural parks on a legal basis. We assessed the suitability of 29 provincial parks to examine the suitability of park planning (special-purpose district planning and facilities planning) according to the Natural Park Act, implementation of the park projects, and registration of Korea Real estate Administration intelligence System (KRAS) for park management and obtained the following results. In the case of the park nature conservation districts among the special-purpose districts, 24.1 % (7 parks) were not feasible or decided the park facility that was larger than the planned area. The amended law requires the park cultural heritage district as a new special-purpose district, but 41.2% did not designate the district or failed to comply with the standard. Moreover, there was a problem of establishing or announcing the plan that was unsuitable for the management of park village district (former collective facilities district). Although provincial parks are categorized as the restricted area, the park facility plans still focus on regional development and tourism development, and the titles (names) of the park facilities are wrong. The law requires digitalization and disclosure of park plans, but many parks fail to abide by the law. We judge that it is necessary to develop effective provincial park planning and establish the measures to protect and manage the provincial parks.

Re-establishing Method of Stability Margin Airworthiness Certification Criteriafor Flight Control System (비행제어시스템 안정성 여유 감항인증 기준 재정립 방안)

  • Kim, Dong-hwan;Kim, Chong-sup;Lim, Sangsoo;Koh, Gi-oak;Kim, Byoung soo
    • Journal of Aerospace System Engineering
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    • v.16 no.1
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    • pp.17-27
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    • 2022
  • A certain level of stability margin airworthiness criteria should be met to secure robustness against uncertainties between the real plant and the model in a flight control system design. The U.S. Department of Defense (DoD) specification of MIL-F-9490D and airworthiness certification standard of MIL-HDBK-516B uses gain and phase margin criteria of flight control system. However, the same stability margin criteria is applied at all development phases without considering the design maturity of each development phase of the aircraft. Ultimately, a problem arises when the aircraft operation envelope is excessively restricted. This paper proposes the relation of handling qualities and stability margin, and presents re-established stability margin criteria as a development phases and verification methods. The results of the research study are considered to contribute to the verification of the stability margin criteria more flexibly and effectively by applying the method to not only the currently manned developing aircrafts but also the unmanned vehicle to be developed in the future.

Political Dynamics of Introducing Quasi Mixed-Member Proportional Representation Electoral System: Veto Player and Partisanship (준연동형 비례대표제 도입의 정치 동학: 거부권행사자와 당파성)

  • Ju, Jin-Sook
    • Korean Journal of Legislative Studies
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    • v.26 no.1
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    • pp.5-32
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    • 2020
  • This study analyzes the political dynamics of the election law reform in December 2019, from a perspective of the veto player theory combined with the partisan theory. Three features are revealed in the reform process of the electoral system. First, the number of cooperative veto players was higher than that of competitive veto players, that provided a favorable condition for policy changes. Second, concerning the ideological distance between veto-players (congruence) the possibility of policy change was evaluated as quite small. Especially in the fourth to fifth periods, the congruence between the cooperative veto players and competitive veto players was extremely weak. Third, the internal coherence of cooperative veto players was relatively weak, while the internal coherence of competitive veto players was relatively strong. That acted as a limiting factor in policy changes. In other words, there was a high possibility of policy changes in the number of cooperative veto players, but the possibility of policy change was relatively restricted in the congruence between veto players and the cohesion of veto players. That explains the limited nature of the election law reform.

Controversial issues in the legal restriction for prenatal genetic testing in Korea (산전검사 대상 질환에 대한 법적 규제의 문제점에 대한 고찰)

  • Choi, Ji-Young;Jeong, Seon-Yong;Kim, Hyon-J.
    • Journal of Genetic Medicine
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    • v.4 no.2
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    • pp.186-189
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    • 2007
  • More than 6,000 rare disorders including genetic diseases have been reported. Of them, 1,500 diseases (1,211 for clinical diagnosis and 289 for research only) are technically possible for genetic testing. In Korea, since 2005, only 63 genetic diseases is permitted for prenatal genetic testing by the "Bioethics and Biosafety Law". The article 25 in the law prescribes 63 genetic diseases without clear indication for its selection and inclusion criteria. In EU, USA, and other foreign countries, however, there is no provision in the statute on prenatal genetic testing; it is not restricted by a law. Recently, a woman (Mrs. L, 38y) who is a carrier for Menkes disease made an appeal to a government for an amendment of the "Bioethics and Biosafety Law" prohibiting the prenatal diagnosis of her pregnancy at risk for Menkes disease. Menkes disease (MNK) is an X-linked recessive disorder characterized by neurodegeneration, connective tissue defects and hair abnormalities, and no effective treatment is available yet. The prevalence rate of MNK is one in about 250,000 live births. Menkes syndrome patients fail to absorb copper from the gastrointestinal tract in quantities adequate for meeting nutritional needs. These needs seem particularly acute during the initial 12 month of life, when the velocity of brain growth and motor neurodevelopment. Most of pts. die around 3yrs. of age. Mrs. L had a boy with Menkes disease who died at 2y.o. in 2001. Subsequent pregnancy in 2003, she was able to have prenatal genetic testing for mutation of the Menkes (ATP7A) gene and delivered a healthy baby boy. Now, She is pregnant again and wants to have prenatal diagnosis. however, this time, she was not allowed to have any more because Menkes disease is not included in 63 genetic diseases permitted by the law for prenatal genetic testing, in spite of the fact that she is a Menkes disease carrier and her pregnancy is at risk to have an affected baby. This case shows the practical problem of the legal restriction for prenatal genetic testing in Korea. In this study, we report a arguable case and discuss the controversial issues in the legal restriction for prenatal genetic testing in Korea.

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Some New Problems of International Aviation Security- Considerations Forcused on its Legal Aspects (최근국제항공보안대책(最近國際航空保安対策)의 제간제(諸間題) -특히 법적측면(法的測面)을 중심(中心)으로-)

  • Choi, Wan-Sik
    • The Korean Journal of Air & Space Law and Policy
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    • v.5
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    • pp.53-75
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    • 1993
  • This article is concerned with the comment on "Some New Problems of International Aviation Security-Considerations Forcused on its Legal Aspects". Ever since 1970, in addition to the problem of failure to accept the Tokyo, Hague and Montreal Conventions, there has been also the problem of parties to them, failing to comply with their obligations under the respective treaties, in the form especially of nominal penalties or the lack of any effort to prosecute after blank refusals to extradite. There have also been cases of prolonged detention of aircraft, passengers and hostages. In this regard, all three conventions contain identical clauses which submit disputes between two or more contracting States concerning the interpretation or application of the respective conventions to arbitration or failing agreement on the organization of the arbitration, to the International Court of Justice. To the extent to which contracting States have not contracted out of this undertaking, as I fear they are expressly allowed to do, this promision can be used by contracting States to ensure compliance. But to date, this avenue does not appear to have been used. From this point of view, it may be worth mentioning that there appears to be an alarming trend towards the view that the defeat of terrorism is such an overriding imperative that all means of doing so become, in international law, automatically lawful. In addition, in as far as aviation security is concerned, as in fact it has long been suggested, what is required is the "application of the strictest security measures by all concerned."In this regard, mention should be made of Annex 17 to the Chicago Convention on Security-Safeguarding International Civil Aviation against Acts of Unlawful Intereference. ICAO has, moreover, compiled, for restricted distribution, a Security Manual for Safeguarding Civil Aviation Against Acts of Unlawful Interference, which is highly useful. In this regard, it may well be argued that, unless States members of ICAO notify the ICAO Council of their inability to comply with opecific standards in Annex 17 or any of the related Annexes in accordance with Article 38 of the 1944 Chicago Convention on International Civil Aviation, their failure to do so can involve State responsibility and, if damage were to insure, their liability. The same applies to breaches of any other treaty obligation. I hope to demonstrate that although modes of international violence may change, their underlying characteristics remain broadly similar, necessitating not simply the adoption of an adequate body of domestic legislation, firm in its content and fairly administered, but also an international network of communication, of cooperation and of coordination of policies. Afurther legal instrument is now being developed by the Legal Committee of ICAO with respect to unlawful acts at International airports. These instruments, however, are not very effective, because of the absence of universal acceptance and the deficiency I have already pointed out. Therefore, States, airports and international airlines have to concentrate on prevention. If the development of policies is important at the international level, it is equally important in the domestic setting. For example, the recent experiences of France have prompted many changes in the State's legislation and in its policies towards terrorism, with higher penalties for terrorist offences and incentives which encourage accused terrorists to pass informations to the authorities. And our government has to tighten furthermore security measures. Particularly, in the case an unarmed hijacker who boards having no instrument in his possession with which to promote the hoax, a plaintiff-passenger would be hard-pressed to show that the airline was negligent in screening the hijacker prior to boarding. In light of the airline's duty to exercise a high degree of care to provide for the safety of all the passengers on board, an acquiescence to a hijacker's demands on the part of the air carrier could constitute a breach of duty only when it is clearly shown that the carrier's employees knew or plainly should have known that the hijacker was unarmed. The general opinion is that the legal oystem could be sufficient, provided that the political will is there to use and apply it effectively. All agreed that the main responsibility for security has to be borne by the governments. A state that supports aviation terrorism is responsible for violation of International Aviation Law. Generally speaking, terrorism is a violation of international law. It violates the sovereign rights of states, and the human rights of the individuals. We have to contribute more to the creation of a general consensus amongst all states about the need to combat the threat of aviation terrorism. I think that aviation terrorism as becoming an ever more serious issue, has to be solved by internationally agreed and closely co - ordinated measures.

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A Study on Designation and Management of Groundwater Conservation Area Using Groundwater Classification Map (지하수 분류도 작성에 의한 서울시 지하수 보전지구 선정\ulcorner관리 방안 연구)

  • 김윤종;이석민;원종석;이성복
    • Journal of Soil and Groundwater Environment
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    • v.6 no.4
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    • pp.97-112
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    • 2001
  • The Section 12 of Groundwater Law stipulates that groundwater conservation zone should be regulated by the designation of conservation area and development restricted area, The most important policy for groundwater conservation and protection is to estimate and designate groundwater conservation zone. The groundwater classification map is utilized to determine the prime groundwater conservation areas, which delineate the first and the second ranked conservation areas of the map. According to the classification method of the Ministry of Construction and Transportation in 2000, groundwater quality for groundwater classification is classified with 4 levels based on the following conditions : (1) the present groundwater quality; (2) the potential usage as drinking water at present and in the future; (3) hydrogeological characteristics, and (4) the existence of pollution sources and activities. Throughout the initial analysis, the groundwater conservation areas are represented about 57.1$\textrm{km}^2$ in the groundwater classification map, which is 9.4% of Seoul Metropolitan Area. The management guidelines for groundwater conservation area are also developed referring to Cheju Province Groundwater Conservation Management Project and the guidelines by the Ministry of Construction and Transportation. But the specific administration and detailed technical survey should be prepared to efficiently manage the groundwater conservation area.

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