• Journal of the Korean Society for Aviation and Aeronautics
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• v.17 no.4
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• pp.94-106
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• 2009

오늘날 항공기사고는 우리나라뿐만 아니라 세계도처에서 때때로 발생되고 있다. 특히 항공기에 대한 갑작스러운 테로 공격 또는 일반 항공사고에 기인된 항공기의 추락 및 물건의 낙하로 인하여 지상에 있는 제3자에게 손해를 입히는 경우가 간혹 발생되고 있다. 이와 같은 항공사건에 있어 가해자(항공기 운항자)는 피해자(지상 제3자 등)에 대하여 불법행위책임을 부담하게 되는데 이러한 사건들을 해결하기 위하여 1952년의 개정로마조약과 1978년의 몬트리올의정서 등이 있음으로 본 논문에서는 이들 조약의 성립경위 및 주요내용과 개정이유 등을 간략하게 설명하였다. 특히 2001년 9월 11일에 뉴욕에서 발생된 이른바 항공기 납치에 의한 동시다발 테러 사건의 피해는 4대의 항공기에 탑승한 승객 및 승무원 266명이 전원 사망하였고 워싱턴에 있는 미국 방성청사에서의 사망 및 실종이 125명, 세계무역센터에서의 사망 및 실종이 약5,000여명에 달하는 막대한 피해가 발생되었다. 9/11참사사건은 지상에 있는 제3자의 인적 및 물적 손해가 거액에 달하였음으로 이에 따라 영국의 로이드보험 등 세계보험업계가 크게 손실을 입게 되어 항공보험을 기피하는 현상이 생겨나 법적인 문제점이 제기되었다. 국제민간항공기구(ICAO)에서는 9/11사태 이후 이와 같은 테로 사건의 법적대응책과 자구책을 마련하기 위하여 약 8년간의 심의 끝에 항공기에 대한 테로 공격(불법방해 행위)과 1952년 개정로마조약의 현대화(일반위험) 등 새로운 2개 조약을 2009년 5월 2일에 성립시켜 공표하였다. 상기 새로운 2개의 조약 중 첫째 조약은 항공기의 불법방해 행위에 기인된 제3자에 대한 손해 배상에 관한 조약(Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft: 일명 불법방해조약이라고 호칭함: Unlawful Interference Convention)이고 둘째 조약은 항공기에 기인된 제3자에 대한 손해배상에 관한조약 (Convention on Compensation for Damage Caused by Aircraft to Third Parties: 일명 일반위험 조약이라고 호칭함: General Risk Convention) 이다. 본 논문에서는 이 새로운 2개 조약에 대한 ICAO가 주관한 성립경위와 주요 내용 및 필자의 논평을 제시하였고 이들 조약에 대하여 한국의 조속한 비준을 촉구하는 바이다.

• The Korean Journal of Air & Space Law and Policy
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• v.23 no.1
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• pp.3-32
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• 2008

In proportion to recent developments in aviation technology and growth of the air transport market, the risk of damages to third parties caused by aircrafts and the likelihood of unlawful interference on an aircraft in flight has grown larger. The war risk insurance market was paralyzed by the 9/11 terror event. And if another event on the scale of 9/11 occurs, compensations for third party damages will be impossible. Recognizing the need to modernize the existing legal framework and the absence of a globally accepted authority that deals with third party liability and compensation for catastrophic damage caused by acts of unlawful interference, the ICAO and various countries have discussed a liability and compensation system that can protect both third party victims and the aviation industry for the 7 years. In conclusion, in order to provide adequate protection for victims and the appropriate protection for air transport systems including air carriers, work on modernizing the Rome Convention should be continued and the new Convention should be finalized in the near future. Korea has not ratified the relevant international treaties, i.e. Rome Convention 1933, 1952 and 1978, and has no local laws which regulate the damage caused by aircraft to third parties on land. Consequently, it has to depend on the domestic civil tort laws. Most of the advanced countries in aviation such as the United States, England, Germany, France and even China, have incorporated the International Conventions to their national air law and governed carriers third party liability within their jurisdiction. The Ministry of Justice organized the Special Enactment Committee for Air Transport chapter under Commercial Law. The Air Transport chapter, which currently includes third party liability, is in the process of instituting new legislation. In conclusion, to settle such problems through local law, it is necessary to enact as soon as possible domestic legislation on the civil liability of the air carrier which has been connected with third party liability and aviation insurance.

• Journal of Advanced Navigation Technology
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• v.27 no.1
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• pp.16-22
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• 2023

Terrorists have been attacking in the vulnerable points of aviation sector with the diverse methods of attacks. Recently, Vulnerability is increasing because the Modus Operandi of Terrorism is carried out by exploitation of people in the form of employee working in aviation sector whose role provides them with privileged access to secured locations, secured items or security sensitive information. Furthermore, cases of insider threat are rising across the world with the phenomenon of personal radicalization through internet and social network service. The government of ROK must respond to insider threat could exploit to acts of unlawful interference and the security regulations should be established to prevent from insider threat in advance refer to the acts of unlawful interference carried out in foreign countries and the recommendations by USA, UK and ICAO.

• The Korean Journal of Air & Space Law and Policy
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• v.27 no.1
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• pp.75-101
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• 2012

As the Reublic of Korea revised the Commercial Code including 40 articles of air transport enacted newly on May 23, 2011, so Korea became first legislative examples in the Commercial Code of the developed and developing countries. I would like to explain briefly the main contents of my paper such as (1) history of enacting newly Part VI (air transport) in the Korea's revised commercial law, (2) legal background enacting newly Part VI (air transport) in the Korea's revised commercial law and the problems on the conditions of air transport, (3) every countries' legislative examples on the civil liability of aircraft's operator, (4) unlawful Interference Convention and general risk convention of 2009, (5) main contents and prospects of the revised Commercial Code for the liability of aircraft's operator etc as the followings. Meanwhile as the Aviation Act, Commercial Code and Civil Code in Korea and Japan did not regulated at all the legal basis of solution on the disputes between victims and offender for the amount of compensation for damage due to personal or property damage caused by aircraft accidents in Korea and Japan, so it has been raised many legal problems such as protection of victims, standard of decision in trial in the event of aircraft accident's lawsuit case. But the Korean Revised Commercial Code including Part VI, air transport regulations was passed by the majority resolution of the Korean National Assembly on April 29, 2011 and then the South Korean government proclaimed it on May 23 same year. The Revised Commercial Code enforced into tothe territory of the South Korea from November 24, 2011 after six month of the proclaimed date by the Korean Government. Thus, though Korean Commercial Code regulated concretely and respectively the legal relations on the liability of compensation for damage in the contract of transport by land in it's Part II (commercial activities) and in the contract of transport by sea in its Part V (marine commerce), but the Amended Commercial Act regulated newly 40 articles in it's Part VI (air transport) relating to the air carrier's contract liability on the compensation for damage caused by aircraft accidents in the air passengers and goods transport and aircraft operator's tort liability on compensation for damage caused by the sudden falling or collision of aircraft to third parties on the surface and so it was equipped with reasonable and unified system among the transport by land, marine and air. The ICAO adopted two new air law conventions setting out international compensation and liability rules for damage caused by aircraft to third parties at a diplomatic conference hosted by it from April 20 to May 2, 2009. The fight against the effects of terrorism and the improvement of the status of victims in the event of damage to third parties that may result either from acts of unlawful interference involving aircraft or caused by ordinary operation of aircraft, forms the cornerstone of the two conventions. One legal instrument adopted by the Conference is "the Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft" (Unlawful Interference Convention). The other instrument, "the Convention on Compensation for Damage Caused by Aircraft to Third Parties" (General Risk Convention), modernizes the current legal framework provided for under the 1952 Rome Convention and related Protocol of 1978. It is desirable for us to ratify quickly the abovementioned two conventions such as Unlawful Interference Convention and General Risk Convention in order to settle reasonably and justly as well as the protection of the South Korean peoples.

• The Korean Journal of Air & Space Law and Policy
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• v.24 no.2
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• pp.3-17
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• 2009

The Rome Convention System (1933, 1952, 1978) which deal the third party lability relating to damage caused by aircraft to third parties on the surface have not been so effective and successful like the Warsaw Convention System. This paper briefs the development of the Rome Convention System and the reasons of their failure which are the low level of the limit of liability and non-parties of major civil aviation states such as the United States, the United Kingdom, Japan, Germany and etc. The Diplomatic Conference hosted by ICAO at Montreal during April 20 to May 2 has successfully produced two Conventions; One is Convention on Compensation for Damage Caused by Aircraft to Third Parties (General Risk Convention), the other is Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference involving Aircraft (Unlawful Interference Convention). The major contents and some problems of these two Conventions are reviewed in comparison with the exisiting Rome Convention System and other legal system. Particularly, the entrance into force of the Unlawful Interference Convention may take some time, at least more than 5 years, due to the realistic problems arising from the operation of International Civil Aviation Fund.

• The Korean Journal of Air & Space Law and Policy
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• v.35 no.3
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• pp.3-37
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• 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
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• v.22 no.2
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• pp.27-51
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• 2007

The cumulative result of the work by the ICAO Secretariat, the Secretariat Study Group and the Council Special Group on the Modernization of the Rome Convention of 1952 are two draft Conventions, namely: "Draft Convention on Compensation for Damage Caused by Aircraft to Third Parties, in case of Unlawful Interference", and "Draft Convention on Compensation for Damage Caused by Aircraft to Third Parties" The core provisions of the former draft Convention are as follows: The liability of the operator is strict, that is, without the necessity of proof of fault. It would be liable for damage sustained by third parties on condition only that the damage was caused by an aircraft in flight(Article 3). However, such liability is caped based on the weight of the aircraft(Article 4). It is envisaged to create an independent organization called the Supplementary Compensation Mechanism, with the principle purpose to pay compensation to persons suffering damage in the territory of a State Party, and to provide financial support(Article 8). Compensation shall be paid by the SCM to the extent that the total amount of damages exceeds the Article 4 limits(Article 19). The main issues on the farmer draft Convention are relating to breaking away from Montreal Convention 1999, no limits on individual claims but a global limitation on air carrier liability, insurance coverage, cap of operators' strict liability, and Supplementary Compensation Mechanism. The core provisions of the latter draft Convention are as follows: the liability of the operator is strict, up to a certain threshold tentatively set at 250,000 to 500,000 SDRs. Beyond that, the operator is liable for all damages unless it proves that such damage were not due to its negligence or that the damages were solely due to the negligence of another person(Article 3). The provisions relating to the SCM and compensation thereunder do not operate under this Convention, as the operator is potentially for the full amount of damages caused. The main issues on the latter draft Convention are relating to liability limit of operator, and definition of general risks. In conclusion, we urge ICAO to move forward expeditiously on the draft Convention to establish a third party liability and compensation system that can stand ready to protect both third party victims and the aviation industry before another 9/11-scale event occurs.

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.2
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• pp.201-248
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• 2015

In Korea the number of unlawful interference act on board aircrafts has been increased continuously according to the growth of aviation demand, and there were 55 incidents in 2000, followed by 354 incidents in 2014, and an average of 211 incidents a year over the past five years. In 1963, a number of states adopted the Convention on Offences and Certain Other Acts Committed on Board Aircraft (the Tokyo Convention 1963) as the first worldwide international legal instrument on aviation security. The Tokyo Convention took effect in 1969 and, shortly afterward, in 1970 the Convention for the Suppression of Unlawful Seizure of Aircraft(the Hague Convention 1970) was adopted, and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation(the Montreal Convention 1971) was adopted in 1971. After 9/11 incidents in 2001, to amend and supplement the Montreal Convention 1971, the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation(the Beijing Convention 2010) was adopted in 2010, and to supplement the Hague Convention 1970, the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft(the Beijing Protocol 2010) was adopted in 2010. Since then, in response to increased cases of unruly behavior on board aircrafts which escalated in both severity and frequency,, the Montreal Protocol which is seen as an amendment to the Convention on Offences and Certain Other Acts Committed on Board Aircraft(the Tokyo Convention 1963) was adopted in 2014. Korea ratified the Tokyo Convention 1963, the Hague Convention 1970, the Montreal Convention 1971, the Montreal Supplementary Protocol 1988, and the Convention on the Marking of Plastic Explosive 1991 which have proven to be effective. Under the Tokyo Convention ratified in 1970, Korea further enacted the Aircraft Navigation Safety Act in 1974, as well as the Aviation Safety and Security Act that replaced the Aircraft Navigation Safety Act in August 2002. Meanwhile, the title of the Aviation Safety and Security Act was changed to the Aviation Security Act in April 2014. The Aviation Security Act is essentially an implementing legislation of the Tokyo Convention and Hague Convention. Also the language of the Aviation Security Act is generally broader than the unruly and disruptive behavior in Sections 1-3 of the model legislation in ICAO Circular 288. The Aviation Security Act has reflected the considerable parts of the implementation of national legislation under the Beijing Convention and Beijing Protocol 2010, and the Montreal Protocol 2014 that are the modernized international conventions relating to aviation security. However, in future, when these international conventions would come into effect and Korea would ratify them, the national legislation that should be amended or provided newly in the Aviation Security Act are as followings : The jurisdiction, the definition of 'in flight', the immunity from the actions against the aircraft commander, etc., the compulsory delivery of the offender by the aircraft commander, etc., the strengthening of penalty on the person breaking the law, the enlargement of application to the accomplice, and the observance of international convention. Among them, particularly the Korean legislation is silent on the scope of the jurisdiction. Therefore, in order for jurisdiction to be extended to the extra-territorial cases of unruly and disruptive offences, it is desirable that either the Aviation Security Act or the general Crime Codes should be revised. In conclusion, in order to meet the intelligent and diverse aviation threats, the Korean government should review closely the contents of international conventions relating to aviation security and the current ratification status of international conventions by each state, and make effort to improve the legislation relating to aviation security and the aviation security system for the ratification of international conventions and the implementation of national legislation under international conventions.

• Korean Security Journal
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• no.53
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• pp.83-105
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• 2017

The purpose of this study is to identify the problems of In-Flight Security Officer responsible for the security of the aircraft in the situation where Acts of Unlawful Interference in Aircraft shows an increasing tendency and the aircraft security is threatened by the terror threat of IS(Daesh) and to suggests its policy implications. Based on the problems of In-Flight Security Officer system found in the media reports and laws, the US Air Marshal system and the domestic similar system were presented to the In-Flight Security Officer developmental implications. First, it is necessary to revise the "Operational Guidelines for Airline Operators' In-Flight security officer" and the related qualifications to the "National Technical Qualifications" system. Second, the plan to change the national civil servants of In-Flight Security Officer in the aircraft, Third, it is a plan to use the registered security guard system in the aircraft. Although this study has limitations the accessibility of information related to aviation security. But, contributions of this study is that the government's efforts to create the public sector jobs, the "strengthening of public services in the country", "the establishment of national accountability for safety accident prevention and disaster safety management" in the "A five-year plan for Government Operation" that it has a timeliness in that it is together. In addition, since there are not many researches related to In-Flight Security Officer, this study also has another contribution as a basic study of the researchers in the aviation security aircraft in the future.

• The Korean Journal of Air & Space Law and Policy
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• v.23 no.1
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• pp.33-54
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• 2008

The damage to the third parties caused by aircraft in flight shall be fully compensated to the extent that the damage didn't occur unless the damage is caused by innocent victims. However, related international Conventions limit operator's liability of compensation to certain levels, which is one of the main reasons that such international Conventions have not been ratified by many aviation leading States. However, international community has agreed, since 9/11, that the accidents caused by terrorists and the protection of the third parties need to be addressed more actively. And the amendment of the related Rome Conventions has been drafted under the ICAO leadership by the special committee that was organized to modernize the related international Conventions. This study addresses the issues related to the draft Conventions, the draft Convention for Damage caused by Aircraft to Third Parties, in case of Unlawful Interference and the draft Convention on compensation for Damage caused by Aircraft to Third Parties. It is expected that it takes considerable time to reach an agreement on all the issues from appropriate apportionment of liability between the government and operator to the details regarding the management of Supplementary Compensation Mechanism. Under the circumstances where the needs for the air transportation as well as threats of terrorism increase, the new international Convention should be prepared taking into consideration the balance between the protection of the innocent third parties and that of air transport industry including air carriers. Along with this, the Republic of Korea should actively participate in the process of amendment to the related international Conventions to protect the life and property of the people from anticipated damages.