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

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

Paleomagnetism, Stratigraphy and Geologic Structure of the Tertiary Pohang and Changgi Basins; K-Ar Ages for the Volcanic Rocks (포항(浦項) 및 장기분지(盆地)에 대한 고지자기(古地磁氣), 층서(層序) 및 구조연구(構造硏究); 화산암류(火山岩類)의 K-Ar 연대(年代))

  • Lee, Hyun Koo;Moon, Hi-Soo;Min, Kyung Duck;Kim, In-Soo;Yun, Hyesu;Itaya, Tetsumaru
    • Economic and Environmental Geology
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    • v.25 no.3
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    • pp.337-349
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    • 1992
  • The Tertiary basins in Korea have widely been studied by numerous researchers producing individual results in sedimentology, paleontology, stratigraphy, volcanic petrology and structural geology, but interdisciplinary studies, inter-basin analysis and basin-forming process have not been carried out yet. Major work of this study is to elucidate evidences obtained from different parts of a basin as well as different Tertiary basins (Pohang, Changgi, Eoil, Haseo and Ulsan basins) in order to build up the correlation between the basins, and an overall picture of the basin architecture and evolution in Korea. According to the paleontologic evidences the geologic age of the Pohang marine basin is dated to be late Lower Miocence to Middle Miocene, whereas other non-marine basins are older as being either Early Miocene or Oligocene(Lee, 1975, 1978: Bong, 1984: Chun, 1982: Choi et al., 1984: Yun et al., 1990: Yoon, 1982). However, detailed ages of the Tertiary sediments, and their correlations in a basin and between basins are still controversial, since the basins are separated from each other, sedimentary sequence is disturbed and intruded by voncanic rocks, and non-marine sediments are not fossiliferous to be correlated. Therefore, in this work radiometric, magnetostratigraphic, and biostratigraphic data was integrated for the refinement of chronostratigraphy and synopsis of stratigraphy of Tertiary basins of Korea. A total of 21 samples including 10 basaltic, 2 porphyritic, and 9 andesitic rocks from 4 basins were collected for the K-Ar dating of whole rock method. The obtained age can be grouped as follows: $14.8{\pm}0.4{\sim}15.2{\pm}0.4Ma$, $19.9{\pm}0.5{\sim}22.1{\pm}0.7Ma$, $18.0{\pm}1.1{\sim}20.4+0.5Ma$, and $14.6{\pm}0.7{\sim}21.1{\pm}0.5Ma$. Stratigraphically they mostly fall into the range of Lower Miocene to Mid Miocene. The oldest volcanic rock recorded is a basalt (911213-6) with the age of $22.05{\pm}0.67Ma$ near Sangjeong-ri in the Changgi (or Janggi) basin and presumed to be formed in the Early Miocene, when Changgi Conglomerate began to deposit. The youngest one (911214-9) is a basalt of $14.64{\pm}0.66Ma$ in the Haseo basin. This means the intrusive and extrusive rocks are not a product of sudden voncanic activity of short duration as previously accepted but of successive processes lasting relatively long period of 8 or 9 Ma. The radiometric age of the volcanic rocks is not randomly distributed but varies systematically with basins and localities. It becomes generlly younger to the south, namely from the Changgi basin to the Haseo basin. The rocks in the Changgi basin are dated to be from $19.92{\pm}0.47$ to $22.05{\pm}0.67Ma$. With exception of only one locality in the Geumgwangdong they all formed before 20 Ma B.P. The Eoil basalt by Tateiwa in the Eoil basin are dated to be from $20.44{\pm}0.47$ to $18.35{\pm}0.62Ma$ and they are younger than those in the Changgi basin by 2~4 Ma. Specifically, basaltic rocks in the sedimentary and voncanic sequences of the Eoil basin can be well compared to the sequence of associated sedimentary rocks. Generally they become younger to the stratigraphically upper part. Among the basin, the Haseo basin is characterized by the youngest volcanic rocks. The basalt (911214-7) which crops out in Jeongja-ri, Gangdong-myon, Ulsan-gun is $16.22{\pm}0.75Ma$ and the other one (911214-9) in coastal area, Jujon-dong, Ulsan is $14.64{\pm}0.66Ma$ old. The radiometric data are positively collaborated with the results of paleomagnetic study, pull-apart basin model and East Sea spreading theory. Especially, the successively changing age of Eoil basalts are in accordance with successively changing degree of rotation. In detail, following results are discussed. Firstly, the porphyritic rocks previously known as Cretaceous basement (911213-2, 911214-1) show the age of $43.73{\pm}1.05$$49.58{\pm}1.13Ma$(Eocene) confirms the results of Jin et al. (1988). This means sequential volcanic activity from Cretaceous up to Lower Tertiary. Secondly, intrusive andesitic rocks in the Pohang basin, which are dated to be $21.8{\pm}2.8Ma$ (Jin et al., 1988) are found out to be 15 Ma old in coincindence with the age of host strata of 16.5 Ma. Thirdly, The Quaternary basalt (911213-5 and 911213-6) of Tateiwa(1924) is not homogeneous regarding formation age and petrological characteristics. The basalt in the Changgi basin show the age of $19.92{\pm}0.47$ and $22.05{\pm}0.67$ (Miocene). The basalt (911213-8) in Sangjond-ri, which intruded Nultaeri Trachytic Tuff is dated to be $20.55{\pm}0.50Ma$, which means Changgi Group is older than this age. The Yeonil Basalt, which Tateiwa described as Quaternary one shows different age ranging from Lower Miocene to Upper Miocene(cf. Jin et al., 1988: sample no. 93-33: $10.20{\pm}0.30Ma$). Therefore, the Yeonil Quarterary basalt should be revised and divided into different geologic epochs. Fourthly, Yeonil basalt of Tateiwa (1926) in the Eoil basin is correlated to the Yeonil basalt in the Changgi basin. Yoon (1989) intergrated both basalts as Eoil basaltic andesitic volcanic rocks or Eoil basalt (Yoon et al., 1991), and placed uppermost unit of the Changgi Group. As mentioned above the so-called Quarternary basalt in the Eoil basin are not extruded or intruaed simultaneously, but differentiatedly (14 Ma~25 Ma) so that they can not be classified as one unit. Fifthly, the Yongdong-ri formation of the Pomgogri Group is intruded by the Eoil basalt (911214-3) of 18.35~0.62 Ma age. Therefore, the deposition of the Pomgogri Group is completed before this age. Referring petrological characteristics, occurences, paleomagnetic data, and relationship to other Eoil basalts, it is most provable that this basalt is younger than two others. That means the Pomgogri Group is underlain by the Changgi Group. Sixthly, mineral composition of the basalts and andesitic rocks from the 4 basins show different ground mass and phenocryst. In volcanic rocks in the Pohang basin, phenocrysts are pyroxene and a small amount of biotite. Those of the Changgi basin is predominant by Labradorite, in the Eoil by bytownite-anorthite and a small amount pyroxene.

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