• Title/Summary/Keyword: US Case Law

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The Legal Issues of Private Investigation Service in WTO/FTA System : Study of South Korea (WTO/ FTA 체제에서 민간조사업의 법적문제)

  • Ko, Ji-Hoon;Park, Hyeon-Ho
    • Korean Security Journal
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    • no.27
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    • pp.161-195
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    • 2011
  • As crimes have increased to an extent that the police cannot cope with, there have been continuous discussions for the introduction of Private Investigation (hereafter PI) in Korea. However, attempts to legislate for the introduction of PI have failed every time PI bills for the introduction of PI were proposed. This was fundamentally because arguments both for and against the introduction of PI were sharply divided depending on the priorities. However, regardless of those clash of views, an apparent need for the legislation of PI service has arisen. As Korea opens its service market to other countries through GATS and FTAs, currently existing domestic PI law has been found to be inconsistent with international agreements such as GATS and KOREA-US(KORUS) FTA. This paper found that the Act on Usage and Protection of Credit Information which regulates PI service is inconsistent with the Article 12.4(a)(i) and (iii) of KORUS FTA and the Article 7.11 and the Article 7.13 of KOREA-EU FTA. If Korea does not modify the existing laws and establish new laws in relation to PI, such inconsistencies could lead to international trade disputes which could amount to billions of dollars. In this regard, the passage of the PI bill is necessary.

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Enactment of Anti-terrorism law In the Third World And The Instruction for Us (제3세계 국가의 테러방지법제정과 우리나라에 있어서 시사점)

  • Cho, Sung-Je;Soung, Jea-Hyen
    • The Journal of the Korea Contents Association
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    • v.9 no.10
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    • pp.274-283
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    • 2009
  • To effectively and quickly respond to new forms of terrorism, a more organically integrated and coordinated system will be needed. As establishing the grounds of such a system based on laws would be most in congruence with legalism, it would be desirable to fundamentally establish an antiterrorism act. However, enactment of such counter-terrorism laws must be accomplished by means with which human rights violations against citizens may be minimized, contrary to what has been the case with third world nations. The act will need to include clauses that may relieve organizations, such as national human rights committees or citizen groups, of concerns over potential human rights violations. To address vulnerabilities of investigative rights issues which relate to cases relevant to acts of terrorism being delegated to the National Intelligence Service, the investigative jurisdiction shall be assigned to the public prosecutors and law enforcement officials as with other criminal proceedings. As for public concern that establishing the Anti-Terrorism Center under the National Intelligence Service, a secret service agency, may infringe upon human rights, functional and organizational dualism of the Anti -terrorism Center would be worth taking into account.

The Current Status of the Warsaw Convention and Subsequent Protocols in Leading Asian Countries (아시아 주요국가(主要國家)들에 있어서의 바르샤바 체제(體制)의 적용실태(適用實態)와 전망(展望))

  • Lee, Tae-Hee
    • The Korean Journal of Air & Space Law and Policy
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    • v.1
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    • pp.147-162
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    • 1989
  • The current status of the application and interpretation of the Warsaw Convention and its subsequent Protocols in Asian countries is in its fredgling stages compared to the developed countries of Europe and North America, and there is thus little published information about the various Asian governments' treatment and courts' views of the Warsaw System. Due to that limitation, the accent of this paper will be on Korea and Japan. As one will be aware, the so-called 'Warsaw System' is made up of the Warsaw Convention of 1929, the Hague Protocol of 1955, the Guadalajara Convention of 1961, the Guatemala City Protocol of 1971 and the Montreal Additional Protocols Nos. 1,2,3 and 4 of 1975. Among these instruments, most of the countries in Asia are parties to both the Warsaw Convention and the Hague Protocol. However, the Republic of Korea and Mongolia are parties only to the Hague Protocol, while Burma, Indonesia and Sri Lanka are parties only to the Warsaw Convention. Thailand and Taiwan are not parties only to the convention or protocol. Among Asian states, Indonesia, the Phillipines and Pakistan are also parties to the Guadalajara Convention, but no country in Asia has signed the Guatemala City Protocol of 1971 or the Montreal Additional Protocols, which Protocols have not yet been put into force. The People's Republic of China has declared that the Warsaw Convention shall apply to the entire Chinese territory, including Taiwan. 'The application of the Warsaw Convention to one-way air carriage between a state which is a party only to the Warsaw Convention and a state which is a party only to the Hague Protocol' is of particular importance in Korea as it is a signatory only to the Hague Protocol, but it is involved in a great deal of air transportation to and from the united states, which in turn is a party only to the Warsaw Convention. The opinion of the Supreme Court of Korea appears to be, that parties to the Warsaw Convention were intended to be parties to the Hague Protocol, whether they actually signed it or not. The effect of this decision is that in Korea the United States and Korea will be considered by the courts to be in a treaty relationship, though neither State is a signatory to the same instrument as the other State. The first wrongful death claim in Korea related to international carriage by air under the Convention was made in Hyun-Mo Bang, et al v. Korean Air Lines Co., Ltd. case. In this case, the plaintiffs claimed for damages based upon breach of contract as well as upon tort under the Korean Civil Code. The issue in the case was whether the time limitation provisions of the Convention should be applicable to a claim based in tort as well as to a claim based in contract. The Appellate Court ruled on 29 August 1983 that 'however founded' in Article 24(1) of the Convention should be construed to mean that the Convention should be applicable to the claim regardless of whether the cause of action was based in tort or breach of contract, and that the plaintiffs' rights to damages had therefore extinguished because of the time limitation as set forth in Article 29(1) of the Convention. The difficult and often debated question of what exactly is meant by the words 'such default equivalent to wilful misconduct' in Article 25(1) of the Warsaw Convention, has also been litigated. The Supreme Court of Japan dealt with this issue in the Suzuki Shinjuten Co. v. Northwest Airlines Inc. case. The Supreme Court upheld the Appellate Court's ruling, and decided that 'such default equivalent to wilful misconduct' under Article 25(1) of the Convention was within the meaning of 'gross negligence' under the Japanese Commercial Code. The issue of the convention of the 'franc' into national currencies as provided in Article 22 of the Warsaw Convention as amended by the Hague Protocol has been raised in a court case in Korea, which is now before the District Court of Seoul. In this case, the plaintiff argues that the gold franc equivalent must be converted in Korean Won in accordance with the free market price of gold in Korea, as Korea has not enacted any law, order or regulation prescribing the proper method of calculating the equivalent in its national currency. while it is unclear if the court will accept this position, the last official price of gold of the United States as in the famous Franklin Mint case, Special Drawing Right(SDR) or the current French franc, Korean Air Lines has argued in favor of the last official price of gold of the United States by which the air lines converted such francs into us Dollars in their General Conditions of Carriage. It is my understanding that in India, an appellate court adopted the free market price valuation. There is a report as well saying that if a lawsuit concerning this issue were brought in Pakistan, the free market cost of gold would be applied there too. Speaking specifically about the future of the Warsaw System in Asia though I have been informed that Thailand is actively considering acceding to the Warsaw Convention, the attitudes of most Asian countries' governments towards the Warsaw System are still wnot ell known. There is little evidence that Asian countries are moving to deal concretely with the conversion of the franc into their own local currencies. So too it cannot be said that they are on the move to adhere to the Montreal Additional Protocols Nos. 3 & 4 which attempt to basically solve many of the current problems with the Warsaw System, by adopting the SDR as the unit of currency, by establishing the carrier's absolute liability and an unbreakable limit and by increasing the carrier's passenger limit of liability to SDR 100,000, as well as permiting the domestic introduction of supplemental compensation. To summarize my own sentiments regarding the future, I would say that given the fact that Asian air lines are now world leaders both in overall size and rate of growth, and the fact that both Asian individuals and governments are becoming more and more reliant on the global civil aviation networks as their economies become ever stronger, I am hopeful that Asian nations will henceforth play a bigger role in ensuring the orderly and hasty development of a workable unified system of rules governing international commercial air carriage.

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Legal Issues Regarding the Launch Vechicle by DPRK : the Scope and Limit of the UN Security Council Resolution (북한의 발사체발사에 따른 법적 쟁점 : UN 안전보장이사회 결의의 성격과 한계)

  • Shin, Hong-Kyun
    • The Korean Journal of Air & Space Law and Policy
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    • v.31 no.1
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    • pp.145-167
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    • 2016
  • UN Security Council is entitled to power for determining the existence of the threat to the peace. Specifying the provisions adopted in accordance with the chapter 7 of the UN Charter, its resolution is deemed as document confirming its decision about the threat to the peace. In general, resolutions adopted by the Security Council acting under Chapter VII of the Charter, are considered binding, in accordance with Article 25 of the Charter. Regarding to the terms of the Resolutions to be interpreted, the word "decide" is used as to the suspension of the ballistic missile program, the word "demand" is used as to the stopping of the the launch of ballistic missile, and the word "demand" is used as to return to the missile test moratorium. These provisions may be deemed to determining specific obligations to be imposed upon the States in accordance with the 1967 Outer Space Treaty. On the other hand, the Resolutions may be limited to the decision, not leading to a sort of international legislation, the main purpose of which is to provide a legal basis for international sanctions against Northe Korea. North Korea missile test case has reminded us of continuing discussion about whether the decision of the Security Council lacks the legislative authority due to its decision process. Furthermore, having regard to the outer space and space activities, the outer space law regime would be not compatible with the Security Council decision process in that the former presupposes the agreement among all States parties, while the latter based upon the agreement between Council member States. Therefore, it is premature to consider the Security Council decision as becoming the lex specialis of the space law regime.

The monitoring of some heavy metals in oriental mineral medicines (광물성 생약 중 중금속의 모니터링)

  • Han, Eunjung;Chung, Jaeyeon;Park, Kyungsu;Kang, Inho;Kang, Sinjung;Kim, Yunje
    • Analytical Science and Technology
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    • v.21 no.6
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    • pp.480-486
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    • 2008
  • This paper reports on the monitoring results of some heavy metals (Pb, Cd, As and Hg) in oriental mineral medicines. Levels of Pb, Cd and As were determined using the acid digestion method and ICP-MS. Hg levels were determined using the gold amalgamation method and Automatic mercury analyzer (AMA). The results indicated that, in the case of Pb, 25.81% (24 cases) of the samples were over MRL (5 mg/kg). Pb levels in Calamina, Pumex, and Cinnabaris exceeded MRL (5 mg/kg). In the case of Cd, 9.68% (17cases) of the samples were over MRL (0.3 mg/kg). Cd levels in Calamina, Pumex and Cinnabaris were exceeded MRL (0.3 mg/kg). In case of As, 24.73% (23 cases) of samples exceeded MRL (3 mg/kg). As levels in Calamina, Lithargyrum, Vermilionum, Cinnabaris and Chalcocitum exceeded MRL (3 mg/kg). In the case of Hg, it was shown that the 76.34% (78 cases) of the samples exceeded MRL (0.2 mg/kg). Hg levels in almost all the samples exceeded MRL (0.2 mg/kg). These results led us to recommend that the domestic commercial law to be legislated to ensure the quality estimation and safety of oriental mineral medicines.

The Concept of "Accident" under the Warsaw System (국제항공운송협약상(國際船空運送協約上) 사고(事故)의 개념(槪念))

  • Choi, Jun-Sun
    • The Korean Journal of Air & Space Law and Policy
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    • v.20 no.1
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    • pp.45-85
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    • 2005
  • The purpose of this paper is to examine the concept of "accident" under the Warsaw system including the Warsaw Convention for the Unification of certain Rules for International Carriage by Air of 1929 and the Montreal Convention of 1999. Most leading case on this subject is Air France v. Saks(470 U.S. 392 (1985)). In the Saks case, it was held that the definition of an accident must be applied flexibly, and most courts have adhered to the definition of accident in Saks case, the application of accident has been less than consistent. However, most cases have held that if the event is usual and expected operation of the aircraft, then no accident has occurred. Courts have also held that where the injury results from passenger's own internal reaction to the usual, normal, and expected operations of the aircraft, it is not caused by an accident. As the Warsaw drafters intended to create a system of liability rules that would cover all hazards of air travel, the carrier should liable for the inherent risks of air travel. It is right in that the carrier is in a better position than the passenger to control the risks during air travel. Most US courts have held that carriers are not liable for one passenger's assault on the other passenger. The interactions between passengers are not part of the normal operations of the aircraft and are therefore not covered by the word "accident" under Art 17 of the Warsaw Convention. It is regretful that the Montreal Convention did not attempt to clarify the concepts of accident in itself. In the light of an emerging tendency to hold the air carrier liable for occurrences that do not exactly go to the operation of the aircraft, it is desirable to regulate that the carrier is liable for an "event" instead of an "accident" in accordance with the Guatemala City protocol.

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'Probable Errors' as an EIA Method to Define Project Impact Area - Focusing on the Preparation of 'Howitzer' Fire Training Site - (공산오차를 적용한 환경영향평가 대상지역 설정 기준에 관한 연구 - 곡사화기 사격장 조성사업을 중심으로 -)

  • Kang, Jaegu;Choi, Joon-Gyu;Cho, Kong-Jang;Joo, Yong-Joon;Han, Myung-Soo
    • Journal of Environmental Impact Assessment
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    • v.16 no.6
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    • pp.495-502
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    • 2007
  • In Korea, military authorities have neglected to consider impacts of military projects on local communities and natural environment. Moreover, local communities have had difficulties in dealing with the Ministry of National Defense (MND), which was stubborn enough not to implement environmental assessment on their projects. In this situation, recent case, "EIA of Baekgol Division's Howitzer Fire Training Site" in the Supreme Court-in which judges upheld the Higher Court's decision that the division violated the Environmental Impact Assessment law by ignoring to implement EIA-reveals that military projects can no longer forgo environmental assessment. The decision has serious ramifications on the future of Environmental Impact Assessment in military-led projects. This paper examines the proper scope of EIA in military-led projects and, more specifically, fire training site and searches for how to improve it through 'probable error,' a military training method that is applied to real 'howitzer' fire training. Probable error of the artillery field manual is nothing more than an error that exceeded as often as it is not exceeded and its scientific method was demonstrated through real fire tests in the US. Army. If it is applied to improve assessment methods about the proper scope of EIA in military 'howitzer' fire training site, 'probable error' will improve effect prediction, mitigation and reliability.

The Research of Commercial HTPB Polymer Binder Characteristics for Castable Plastic Bonded Explosive (주조형 복합화약용 HTPB 고분자 바인더의 상용모델 특성연구)

  • Lee, Seung-Jae;Kim, Jae-Woo;Park, Jong-Wan
    • Proceedings of the Korean Society of Propulsion Engineers Conference
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    • 2011.11a
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    • pp.441-444
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    • 2011
  • Type A and Type B and are commercial HTPB models, which are very popular prepolymer for polyurethane binder family. So the study has been performed on the physical, chemical characteristic of HTPB and viscosity, mechanical property of PBX-A applying to HTPB. But We excluded the Type A from Appication test, because of law Hydroxyl value. And in the case of Type B, Type B-1, 2 has mechanical disadvatage to apply to HTPB in the process comparing with B-3. It seems to make no problem if we change equivalence ratio or curing condition within standards. But if we are to apply process condition like R-45HT(US-sample), it would be essential to apply HTPB with higher Hydroxyl Value and hydroxyl Functionality.

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A Case Study for Improvement of Users' Right to Informational self-determination: Focusing on the GDPR of EU and the CCPA of California, USA (국내 기업의 개인정보 자기결정권 강화를 위한 논의: EU의 GDPR과 미국 캘리포니아주의 CCPA를 중심으로)

  • Yoon, Young-Ho;Yoon, Hyun Shik
    • The Journal of Information Systems
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    • v.28 no.4
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    • pp.65-103
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    • 2019
  • Purpose The purpose of this study is to find out in extent to which the companies in Korea and oversea, which has been subjected by different laws of their country, have guaranteed the personal information rights and have provided proper 'right to access' to the information subjects. Design/methodology/approach This study compared Korean laws with 'General Data Protection Regulation (GDPR)' of EU and 'California Consumer Privacy Act (CCPA)' to check each of the level of 'right to access' guarantee. In terms of the difference in guaranteeing the right, this study compared Korean IT leading companies with US global leading IT companies to find out how much 'right to access' are properly implemented in their policies and functions they provide. Findings The result of the study shows that 'right to access' has not been well guaranteed by Korean law, as it does not provide the right to choose method and medium by information subjects and does not clarify the types of diverse information. This was clearly opposite with the other laws providing the right to choose what method and medium that subjects want with clarifying every types of personal information possible to be more. In addition, 'right to access' has not been well guaranteed by Korean companies in comparison with by the oversea companies which proactively guarantee the right by setting the function enabling subjects to browse their information through their websites or applications.

A Study on the Basic Requirements and Operation Plan of E-trade Platform (전자무역 플랫폼의 기본요건과 운영방안에 관한 연구)

  • Lee, Sang-Jin
    • International Commerce and Information Review
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    • v.6 no.2
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    • pp.107-127
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    • 2004
  • The rapid development of internet information technology has increased interest in e-Trade these days, but it is not activated greatly up to now. In order to promote e-Trade, it is essential to construct cooperative process such as connecting systems among trade related parties. Building e-Trade platform which is based on the infrastructure of the past trade automatic system is key point of promoting e-Trade. To do this, a study on the basic concept and specific components of e-Trade platform is needed absolutely. At this point of view, after this paper has examined domestic and foreign studies on the fundamental technologies about electronic commerce, it drew several key technologies that could be applied to e-Trade considering the current IT trend. Then it evaluates these technologies according to Technology Reference Model(TRM) of the National Computerization Agency. This will help us to show the operation strategy as well as the concept of future e-Trade platform and its composition. On the basis of the theoretical background, this paper classified NCA's technology model into 6 fields, which are application. data, platform, communication, security and management. Considering the key technologies, e-Trade platform has to be mutually connected and accept international standards such as XML. In the aspect of business side, trade relative agencies' business process as well as trading company's process has to be considered. Therefore, e-Trade platform can be classified into 3 parts which are service, infrastructure and connection. Infrastructure part is compared of circulating and managing system of electronic document, interface and service framework. Connecting service (application service) and additional service (application service) consist of service part. Connecting part is a linking mutual parts and can be divided into B2B service and B20 service. The organization operating this e-trade platform must have few responsibilities and requirements. It needs to positively accept existing infrastructure of trade automatic system and improving the system to complete e-trade platform. It also have to continuously develop new services and possess ability to operate the system for providing proper services to demanders. As a result, private sector that can play a role as TTP(Third Trust Party) is adequate for operating the system. In this case, revising law is necessary to support the responsibility and requirement of private sector.

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