• The Korean Journal of Air & Space Law and Policy
• /
• v.35 no.3
• /
• pp.3-37
• /
• 2020

The aircraft crew operating on international routes performs almost identical tasks as police officials in terms of dealing with the unlawful interference in the aircraft. This means that the liability question which is related to the law enforcement by the police officer may arise regarding the crew's performance of his or her duties. With regard to the carrier's liability due to the crew's unlawful action, there are distinctive characteristics from the liability due to police officers' unlawful action. In case of the claim for damages by the crew's unlawful action, the first question should be whether such action complies with the requirements under the Tokyo Convention 1963. If such action does not conform with the Tokyo Convention 1963, we should examine that claim under the State Compensation Act, the Montreal Convention 1999, and the Civil Act of Korea. The examination under the Tokyo Convention 1963 is not so different from the Korean Court's precedents. However, the court should consider the characteristics of the environment surrounding the crew. The action which is not indemnified under the Tokyo Convention 1963 should be examined under the tort laws. Because the aircraft crew is private persons entrusted with public duties under Korean Law, the State Compensation Act may apply. However, further studies regarding the harmonious interpretation with the Montreal Convention 1999 is needed. With regard to the carrier's liability, the Montreal Convention of 1999 should be applied to the crew's unlawful actions onboard. This is because the Montreal Convention of 1999 preempts the national law for the events that occurred during transportation, and there is no provision which excludes such unlawful actions from the scope of its application. On the other hand, the national law, such as the Civil Act of Korea, applies to unlawful actions taken after transportation. This is because the interpretation that infinitely expands the scope of the Montreal Convention 1999 should not be allowed. Given the foregoing, the standard of the claim for damages due to the crew's unlawful action varies depending on the place where the specific action was taken. As a result, the type of damage recoverable and the burden of proof also varies accordingly. Carriers and crew members must perform their duties with this in mind, but in particular, they should observe the proportionality, and when interpreting the law, it is necessary for the court or lawyer to consider the special characteristics of the work environment.

• The Korean Journal of Air & Space Law and Policy
• /
• v.28 no.2
• /
• pp.3-35
• /
• 2013

Air transport today is a means of transport that is optimized for exchanges between nations. Around the world, has experienced an increase in operating and the number of airline route expansion that has entered into the international aviation agreements in order to take advantage of the air transport efficient, but the possibility of the occurrence of air transport accidents increased. When compared to the accident of other means of transport, development of air transport accidents, not high, but it leads to catastrophe aviation accident occurs. Air Transport accident many international transportation accident than domestic transportation accident, in the event of an accident, the analysis of the legal responsibility of the shipper or the like is necessary or passenger air carrier. Judgment of the legal order of discipline of air transport accident is a classification of the type of air transport agreement. Depending on the object, air transport agreements are classified into the contract of carriage of aviation of the air passenger transportation contract. For casualties occurs, air passenger transportation accident is a need more discussion of legal discipline for this particular. Korean Commercial Code, it is possible to reflect in accordance with the actual situation of South Korea the contents of the treaty, which is utilized worldwide in international air transport, even on the system, to control land, sea, air transport and welcoming to international standards. However, Korean Commercial Code, the problem of the Montreal Convention has occurred as it is primarily reflecting the Montreal Convention. As a cause of liability for damages, under the Commercial Code of Korea and the contents of the treaty precedent is reflected, the concept of accident is necessary definition of the exact concept for damages of passengers in particular. Cause of personal injury or death of passengers, in the event of an accident to the "working for the elevation" or "aircraft" on, the Montreal Convention is the mother method of Korea Commercial Code, liability for damages of air carrier defines. The Montreal Convention such, continue to be a matter of debate so far in connection with the scope of "working for the lifting of" the concepts defined in the same way from Warsaw Convention "accident". In addition, it is discussed and put to see if you can be included mental damage passenger suffered in air transport in the "personal injury" in the damage of the passenger is in the range of damages. If the operation of aircraft, injury accident, in certain circumstances, compensation for mental damage is possible, in the same way as serious injury, mental damage caused by aviation accidents not be able to live a normal life for the victim it is damage to make. So it is necessary to interpret and what is included in the injury to the body in Korea Commercial Code and related conventions, non-economic damage of passengers, clearly demonstrated from the point of view of prevention of abuse of litigation and reasonable protection of air carrier it must compensate only psychological damage that can be. Since the compensation of delay damages, Warsaw Convention, the Montreal Convention, Korea Commercial Code, there are provisions of the liability of the air carrier due to the delayed arrival of passenger and baggage, but you do not have a reference to delayed arrival, the concept of delay arrangement is necessary. The strict interpretation of the concept of delayed arrival, because it may interfere with safe operation of the air carrier, within the time agreed to the airport of arrival that is described in the aviation contract of carriage of passenger baggage, or, these agreements I think the absence is to be defined as when it is possible to consider this situation, requests the carrier in good faith is not Indian or arrive within a reasonable time is correct. The loss of passenger, according to the international passenger Conditions of Carriage of Korean Air, in addition to the cases prescribed by law and other treaties, loss of airline contracts, resulting in passengers from a service that Korean Air and air transport in question do damage was is, that the fact that Korean Air does not bear the responsibility as a general rule, that was caused by the negligence or intentional negligence of Korean Air is proof, negligence of passengers of the damage has not been interposed bear responsibility only when it is found. It is a clause in the case of damage that is not mandated by law or treaty, and responsible only if the negligence of the airline side has been demonstrated, but of the term negligence "for" intentional or negligent "Korean Air's Terms" I considered judgment of compatibility is required, and that gross negligence is appropriate. The "Korean Air international passenger Conditions of Carriage", airlines about the damage such as electronic equipment that is included in the checked baggage of passengers does not bear the responsibility, but the loss of baggage, international to arrive or depart the U.S. it is not the case of transportation. Therefore, it is intended to discriminate unfairly passengers of international flights arriving or departure to another country passengers of international flights arriving or departure, the United States, airlines will bear the responsibility for the goods in the same way as the contents of the treaty it should be revised in the direction.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.14
• /
• pp.103-152
• /
• 2000

English contract law has traditionally taken the view that it is not the duty of the parties to a contract to give information voluntarily to each other. In English law, one of the principal distinctions between insurance contract law and general contract law is the existence of the doctrine of utmost good faith in insurance law. The doctrine gives rise to a variety of duties, some of which apply before formation of the contract while others apply post-formation. This article is, therefore, designed to analyse the overall structure and problems of the doctrine of utmost good faith in English marine insurance law. The results of analysis are as following : First, the requirement of utmost good faith in marine insurance law arises from the fact that many of the relevant circumstances are within the exclusive knowledge of the assured and it is impossible for the insurer to obtain the facts to make a appropriate calculation of the risk that he is asked to assume without this information. Secondly, the duty of utmost good faith provided in MIA 1906, s. 17 has the nature as a bilateral or reciprocal, overriding and absolute duty. Thirdly, the Court of Appeal in Skandia held that breach of the pre-formation duty of utmost good faith did not sound in damages since the duty did not arise out of an implied contractual term and the breach did not constitute a tort. Instead, the Court of Appeal held that the duty was an extra-contractual duty imposed by law in the form of a contingent condition precedent to the enforceability of the contract. Fourthly, the scope of the duty of utmost good faith is closely related to the test of materiality and the assured is required to disclose only material circumstances subject to MIA 1906, s. 18(1) and 20(1). The test of materiality, which had caused a great deal of debate in English courts over 30 years, was finally settled by the House of Lords in Pan Atlantic and the House of Lords rejected the 'decisive influence' test and the 'increased risk' test, and the decision of the House of Lords is thought to accept the 'mere influence' test in subsequent case by the Court of Appeal. Fifthly, the insurer is, in order to avoid contract, required to provide proof that he is induced to enter into the contract by reason of the non-disclosure or misrepresentation of the assured. Sixthly, the duty of utmost good faith is, in principle, terminated before contract is concluded, but it is undoubtful that the provision under MIA 1906, s. 17 is wide enough to include the post-formation duty. The post-formation duty is, however, based upon the terms of marine insurance contract, and the duty lies entirely outside s. 17. Finally, MIA 1906, s. 17 provides expressly for the remedy of avoidance of the contract for breach of the duty. This means rescission or retrospective avoidance of the entire contract, and the remedy is based upon a fairly crude 'all-or-nothing' approach. What is needed in English marine insurance law is to introduce a more sophiscated or proportionate remedy.

• Journal of Arbitration Studies
• /
• v.16 no.3
• /
• pp.53-89
• /
• 2006

At its thirty-second session(Vienna, 17 May-4 June 1999), the UNCITRAL decided that the priority items for the Working Group(Arbitration and Conciliation) should include enforceability of interim measures and the requirement of written (on for the arbitration agreement. The Working Group, at its forty-third session(Vienna, 3-7 October 2005), it had undertaken a detailed review of the text of the revised article 17 of UNCTTRAL Model Law on International Commercial Arbitration, and it had resumed discussions on a draft model legislative provision revising article 7, paragraph (2) of UNCITRAL Model Law. The purpose of this paper is to make research on the contents and issues of the draft legislative provisions on interim measures and preliminary orders, and on the form of arbitration agreement which the Working Group discussed and adopted at its forth-fourth session(New York, 23-27 January 2006). The draft legislative provisions on interim measures and preliminary orders are composed of the following provisions : Article 17-power of arbitral tribunal to order interim measures; article 17 bis-conditions for granting interim measures; article 17 ter-applications for preliminary orders and conditions for granting preliminary orders; article 17 quater-specific regime for preliminary orders; article 17 quinquies- modification, suspension, termination; article 17 sexies-provision of security; article 17 septies-disclosure; article 17 octies-costs and damages; article 17 novies recognition and enforcements; article 17 decies-grounds for refusing recognition or enforcement; article 17 undecies-court-ordered interim measures. There are the following issues in the draft legislative provisions on interim measures and preliminary orders : form of issuance of an interim measures in article 17(2); conditions for granting interim measures in article 17 bis; purpose, function and legal regime of preliminary orders in article 17 ter; obligation of arbitral tribunal to give notice, and non-enforceability of preliminary orders in article 17 quater; burden of proof, interplay between article 17 decies and article 34, and decision on the recognition and enforcement of the interim measures in article 17 decies; placement of article 17 undecies; amendment of scope exception of application in article 1(2). The draft legislative provisions on the form of arbitration agreement are composed of the following provisions : article 7(1) definition of arbitration agreement; article 7(2) arbitration agreement in writing; article 7(3) arbitration agreement if its terms(content) are (is) recorded in any form; article 7(4) arbitration agreement by an electronic communication; article 7(5) arbitration agreement in an exchange of statements of claim and defence; article 7(6) reference to any document containing an arbitration clause. There are the following issues in the draft legislative provisions on the form of arbitration agreement : arbitration agreement in writing in article 7(2); terms or contents of arbitration agreement in article 7(3); arbitration agreement by electronic communication in article 7(4); existence of arbitration agreement in article 7(5); reference to any document containing an arbitration clause in article 7(6); the alternative proposal on article 7; amendment to article 35(2).

• The Journal of the Korea Contents Association
• /
• v.21 no.3
• /
• pp.626-633
• /
• 2021

In the event of a housing sale guarantee accident, the Housing and Urban Guarantee Corporation shall be responsible for the guarantee by refunding the moving-in money unless there are special circumstances to the contractor. The Housing and Urban Guarantee Corporation may refuse to perform the refund based on the Terms and Conditions Regulations Act, but disputes continue to arise between interested parties in this regard. Therefore, the purpose of this study is to study the problems and improvement measures for legal issues related to the implementation of the refund. First, the issue of guarantee effectiveness and scope of guarantee under the Terms and Conditions Regulation Act. Second, the problem of guarantee contract for conditional third parties of Housing and Urban Guarantee Corporation. Third, the problem of the attitude of the existing precedents of the Supreme Court was examined. As a result of reviewing these legal issues, it was confirmed that the interpretation of terms and conditions according to the implementation of the refund is being interpreted in accordance with the principle of good faith, but according to individual cases, precedents can be divided into positive and negative judgments. In addition, despite the fact that the housing pre-sale guarantee is a guarantee contract for a conditional third party, it was confirmed that the buyer suffered damages in good faith through active disputes with the interested parties. Accordingly, the Housing and Urban Guarantee Corporation proposed an improvement plan for roles and cooperation items to meet the purpose of establishment for the stability of the customer's housing.

• Journal of the Korea Institute of Building Construction
• /
• v.15 no.5
• /
• pp.515-525
• /
• 2015

Currently, according to the climate change, serious damage by typhoon has been occurred in the world. In this respect, the research on the prediction model to minimize the damage from various natural disaster has been conducted in several developed countries. In the case of U.S, various models to predict building damage costs have been used widely in many organizations such as insurance companies and governments. In South Korea, although studies regarding damage prediction model according to typhoon have been conducted, the scope has been only limited to consider the property of typhoon. However, it is necessary to consider various factors such as typhoon information, geography, construction environment, and socio-economy factors to predict the damages. Therefore, to address this issue, first, correlation analysis is conducted between various variables based on the data of typhoon from 2003 to 2012. Second, the damage prediction model by using regression analysis is developed based on suggested influence factors. The findings of this study can be utilized to develop the model for predicting the damage costs of buildings by typhoon like HAZUS-MH of US.

• Fire Science and Engineering
• /
• v.25 no.6
• /
• pp.32-38
• /
• 2011

As the using rate of an explosive gas has been increased in the industrial site, the regional residents adjacent to the site as well as the site workers have frequently fallen into a dangerous situation. Damage caused by accident in the process using hydrogen gas is not confined only to the relevant process, but also is linked to a large scale of fire or explosion and it bring about heavy casualties. Therefore, personnel in charge should investigate the kinds and causes of the accident, forecast the scale of damage and also, shall establish and manage safety countermeasures. We, in Anti-Calamity Research Center, forecasted the scope of danger if break out a fire or/and explosion in hydrogen gas facilities of MLCC firing process. We selected piping leak accident, which is the most frequent accident case based on an actual analysis of accident data occurred. We select and apply piping leak accident which is the most frequent case based on an actual accident data as a model of damage forecasting scenario caused by accident. A jet fire breaks out if hydrogen gas leaks through pipe size of 10 mm ${\Phi}$ under pressure of 120 bar, and in case of $4kw/m^2$ of radiation level, the radiation heat can produce an effect on up to distance of maximum 12.45 meter. Herein, we are going to recommend safety security and countermeasures for improvement through forecasting of accident damages.

• The Korean Society of Law and Medicine
• /
• v.16 no.2
• /
• pp.197-225
• /
• 2015

The presentation of this paper was triggered by the spread of MERS in Korea in the year 2015. The analysis of the present acts related with MERS is necessary in order to cope efficiently with any probable spread of such infectious diseases as MERS in future. The acts that should be analyzed in this paper include 'Medical Service Act' and 'Infectious Disease Control And Prevention Act' (hereafter, IDCAPA). At first the classification of the infectious diseases in IDCAPA should be referred to. The Act does not properly classify them because the scope of concept of each group of the infectious diseases overlaps each other. This overlap should be removed. The present system in IDCAPA is not proper for the efficient notification and reporting of the infectious disease patients. This is so in some viewpoints including the persons obligated to make the notification and reporting, the persons to whom they should notify and report such patients, and the process of notification and reporting. The efficient approach to the information related with the infectious disease is necessary for the rapid prevention of its spread. Cohort isolation and quarantine of the infectious patients and exposed contacts are the strongest and most efficient steps for the prevention of spread of the infectious diseases. One of the great problems related with such steps would be the conflict of powers or attributions, the likelihood of which is inevitable under the present system of IDCAPA. The IDCAPA distributed the power or attribution to take the steps to the three governments including the central government, the metropolitan government and the primary local government. The power should be concentrated in the central government, which could afford financially to compensate for the huge amount of damages caused likely by the steps. The power to take the steps would be actually just a useless thing for its holder without such financial capacity. The remedy for the victims by the fault of spreader should be approached to in the sense of national wealth. The general principle of tort law could not supply the victims with the sufficient remedy because the damages would be likely too huge for the wealth of such spreader to cope with. In future another parliamentary inspection could reveal another problems in the administration by the government of the MERS event in the year 2015. Any problem caused by defect in the legal system of the control and prevention of the infectious diseases should be taken into consideration when the legal system would be reformed in future.

• The Korean Society of Law and Medicine
• /
• v.23 no.4
• /
• pp.133-170
• /
• 2022

Supreme Court 2018Da228486, on July 29, 2021, ruled Article 750 of the Civil Act as the basis for liability for damages due to the violation of the supervisory duty of the responsible mental patient. This judgment recognizes that the legal guardian is liable for tort due to neglect of the responsibility of supervision under Article 750 of the Civil Act because the duty of protection bears the duty of supervision over the mental patient under the law. However, unlike the case of Article 755 Paragraph 1, which explicitly requires a legal obligation to supervise, Article 750 only stipulates general tort liability. Thus, to admit tort liability under Article 750, it is not necessary that the basis of the supervisory duty by the law. In this case, the supervisory duty may also be acknowledged according to customary law or sound reasoning. The duty of supervision of a legal guardian is not a general duty to prevent all consequences of the behavior of a mental patient but a duty within a reasonably limited scope. Therefore, the responsibility of the burden of care should be acknowledged only when the objective circumstances in which it is appropriate to hold the legal guardian for the acts of the mental patient are admitted. Under the Act on the improvement of mental health and the support for welfare services for mental patients, a legal guardian cannot even be granted the supervisory duty to prevent the mental patient from harming others.

• The Korean Journal of Air & Space Law and Policy
• /
• v.35 no.1
• /
• pp.33-62
• /
• 2020

The current air transportation industry is facing a lot of changes not only in the quantitative growth of the market, but also in the legal aspects. For many years, the Warsaw Convention has contributed to the uniform discipline of civil carriers' legal liabilities arising from international aviation accident and has fulfilled the duties of legal guardians for the development of the air transport industry. In the process, however, the consumer interests of the air transport industry did not have much protection compared to other industries. In response, the Montreal Convention has effected for protecting the interests of aviation consumers, and there are numerous legal changes around the world to protect aviation consumers like passengers. The mental damages of airline passengers arising from the accident can also be understood as part of the protection of air consumers. Considering that the US Federal Court has dealt with the recognition of mental damages for air passengers since the early 1990s. However, Korean judicial precedent still excludes mental anguishes from the scope of damage compensation. From this point of view, it is considered academically meaningful to analyze the latest case of the US federal court. Recently, the United States Court of Appeal for the Sixth Circuit in Doe v Etihad Airways applied a different interpretation against the traditional opinion: passengers could not recover for mental distress unless that mental distress resulted from a bodily injury sustained in an airplane accident. The background of the court's conclusions can be explained in many ways, among other things, unlike the Warsaw Convention the new international rule, Montreal Convention is recognizing the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution.