• 항공우주정책ㆍ법학회지
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• 제26권1호
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• pp.177-213
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• 2011

현재 우주활동에 의하여 발생된 손해에 대한 배상책임과 관련된 국제조약으로 1967년 우주조약과 1972년 우주손해배상책임조약이 있으며, 또한 우리나라 국내법으로 2008년 우주손해배상법이 있다. 우주조약은 우주활동에 대한 국가의 국제적 책임과 우주물체에 의한 손해에 대한 국가의 불법행위 책임에 관하여 규정하고 있다. 우주손해책임조약은 발사국의 절대적 책임, 과실책임, 연대책임, 배상청구권자, 배상청구방법, 배상청구기한, 배상청구와 국내적 구제, 손해배상액, 청구위원회 설치 등에 관하여 규정하고 있다. 우리나라 우주손해배상법은 우주손해의 정의, 우주손해책임조약과의 관계, 발사자의 무과실책임 및 책임의 집중, 발사자의 손해배상책임한도액, 발사자의 책임보험 가입, 정부의 피해자 구조 및 발사자 지원 등에 관하여 규정하고 있다. 우주사고로 인한 손해배상책임 관련 사례들로 Iridium33과 Cosmos 2251 위성충돌 사건, Cosmos 954 위성추락 사건, Martin Marietta의 위성발사 실패 사건, Westar VI 위성 작동불량 사고 등이 있으며, 이러한 우주사건에 관한 분쟁 또는 소송에 있어서 위성의 발사국, 발사자 및 제조자의 손해배상책임 부담문제에 관련하여 절대책임(엄격책임)원칙 또는 과실책임원칙이 적용되어 해결되고 있다. 우주손해책임조약의 개선방안으로 손해배상청구권자의 명확한 규정, 청구위원회의 결정의 구속력 확보 등을 들 수 있고, 우리나라 우주손해배상법의 개선방안으로 손해배상범위에 간접손해 포함, 손해배상책임 한도액의 통화단위 변경, 공동발사자의 연대책임 및 구상권 신설, 우주손해배상심의위원회의 설치 등을 들 수 있다. 우리나라는 2009년 6월 전남 고흥군 외나로도에 우주센터가 준공되어 동년 8월 및 2010년 6월 우리나라 최초 소형 우주발사체 나로호(KSLV-1)를 두차례 발사하였다. 향후 우리나라는 우주활동 과정에서 우주관련 국제조약 및 국내법상의 국제적 책임 및 우주손해에 대한 배상책임 등 문제들이 발생할 가능성이 있으므로 우리정부 및 우주물체 발사기관은 이러한 문제들에 대한 법적 제도적 대응책을 마련해야 할 것이다.

• 한국중재학회지:중재연구
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• 제28권4호
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• pp.43-59
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• 2018

This study aims to review various efforts required by medical institutions to prevent medical accidents in advance and to suggest the necessity of introducing liability insurance for medical accidents based on cases abroad and compulsory professional indemnity insurance at home. Over the past five years between 2013 and 2017, the number of inquiries regarding medical accidents and medical disputes has increased by 11.1 percent from 36,099 to 54,929, and the number of mediation and arbitration for medical disputes has increased by 14.3 percent from 1,304 to 2,225. Since some medical accidents even cause social problems, a compulsory insurance system for the liability of medical institutions for damages need to be introduced to promptly compensate the victims of medical accidents and to ensure compensation by medical personnel. In Korea, a system is in place to provide compensation for a client who suffers an accidental damage after receiving professional services, regardless of whether or not the professional service provider can provide compensation. In major foreign countries, a medical liability system is in place that is applied either by the principle of liability with fault, or the principle of liability without fault. In this study, the cases of compulsory insurance and semi-compulsory insurance in the US and Japan to which the principle of liability with fault is applied, as well as the case of New Zealand to which the principle of liability without fault is applied, were examined. It is necessary to urgently introduce the compulsory insurance system for the liability of compensation to prevent medical disputes and to compensate for the life and physical damages of the victims of medical accidents in domestic medical institutions. Doing so is expected to ensure fair compensation for the victims of medical malpractice and compensation by medical personnel, thereby improving medical practice.

• 한국중재학회지:중재연구
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• 제20권2호
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• pp.173-198
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• 2010

The purpose of this paper is to research on the liability for the space damage and the settlement of the dispute with reference to the space activity under the international space treaty and national space law of Korea. The United Nations has adopted five treaties relating to the space activity as follows: The Outer Space Treaty of 1967, the Rescue and Return Agreement of 1968, the Liability Convention of 1972, the Registration Convention of 1974, and the Moon Treaty of 1979. All five treaties have come into force. Korea has ratified above four treaties except the Moon Treaty. Korea has enacted three national legislations relating to space development as follows: Aerospace Industry Development Promotion Act of 1987, Outer Space Development Promotion Act of 2005, Outer Space Damage Compensation Act of 2008. The Outer Space Treaty of 1967 regulates the international responsibility for national activities in outer space, the national tort liability for damage by space launching object, the national measures for dispute prevention and international consultation in the exploration and use of outer space, the joint resolution of practical questions by international inter-governmental organizations in the exploration and use of outer space. The Liability Convention of 1972 regulates the absolute liability by a launching state, the faulty liability by a launching state, the joint and several liability by a launching state, the person claiming for compensation, the claim method for compensation, the claim period of compensation, the claim for compensation and local remedy, the compensation amount for damage by a launching state, the establishment of the Claims Commission. The Outer Space Damage Compensation Act of 2008 in Korea regulates the definition of space damage, the relation of the Outer Space Damage Compensation Act and the international treaty, the non-faulty liability for damage by a launching person, the concentration of liability and recourse by a launching person, the exclusion of application of the Product Liability Act, the limit amount of the liability for damage by a launching person, the cover of the liability insurance by a launching person, the measures and assistance by the government in case of occurring the space damage, the exercise period of the claim right of compensation for damage. The Liability Convention of 1972 should be improved as follows: the problem in respect of the claimer of compensation for damage, the problem in respect of the efficiency of decision by the Claims Commission. The Outer Space Damage Compensation Act of 2008 in Korea should be improved as follows: the inclusion of indirect damage into the definition of space damage, the change of currency unit of the limit amount of liability for damage, the establishment of joint and several liability and recourse right for damage by space joint launching person, the establishment of the Space Damage Compensation Review Commission. The 1998 Final Draft Convention on the Settlement of Disputes Related to Space Activities of 1998 by ILA regulates the binding procedure and non-binding settlement procedure for the disputes in respect of space activity. The non-binding procedure regulates the negotiation or the peaceful means and compromise for dispute settlement. The binding procedure regulates the choice of a means among the following means: International Space Law Court if it will be established, International Court of Justice, and Arbitration Court. The above final Draft Convention by ILA will be a model for the innovative development in respect of the peaceful settlement of disputes with reference to space activity and will be useful for establishing the frame of practicable dispute settlement. Korea has built the space center at Oinarodo, Goheung Province in June 2009. Korea has launched the first small launch vehicle KSLV-1 at the Naro Space Center in August 2009 and June 2010. In Korea, it will be the possibility to be occurred the problems relating to the international responsibility and dispute settlement, and the liability for space damage in the course of space activity. Accordingly the Korean government and launching organization should make the legal and systematic policy to cope with such problems.

• 항공우주정책ㆍ법학회지
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• 제22권2호
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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.

• 환경정책연구
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• 제2권1호
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• pp.107-135
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• 2003

This study reviews the proposed liability and redress regime under the Cartagena Protocol on Biodiversity. Several core elements for the regime are discussed in comparison with those listed in the 1999 Basel Protocol on Liability and Compensation for Damage resulting from the Transboundary Movements of Hazardous Wastes and their Disposal. These are (1) scope of the rules and procedures; (2) channeling of liability; (3) legal standing; (4) definition of damage; (5) standard of care; (6) ancillary sources of compensation; (7) limitation of liability; (8) financial guarantees; and (9) mutual recognition and enforcement of judgments. Korea has given relatively little attention to the issue of liability and redress in the context of LMOs trade. As the Protocol is expected to enter into force soon, Korea needs to develop appropriate implementing domestic mechanisms for the Biosafety Protocol. Establishing an adequate domestic liability and compensation scheme will be one of the most important mechanisms not only to comply the Protocol but to ensure safety of LMOs in general. A further research is needed on the basis of a comparision of relevant legislations in different countries as well as analysis of current laws related to the accidents arising from LMOs trade, such as product liability laws, food safety laws, liability provisions in some environmental legislations.

• 항공우주정책ㆍ법학회지
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• 제22권2호
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• pp.3-25
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• 2007

In 2002 Republic of Korea successfully launched a self-made mined proportion rocket and it is expected that she will be able to have own space launching system by 2010. According to Article 14 of the Space Exploration Promotion Act, a new law should be established to impose the limit of compensation for the damage by space accident. Therefore, The Space Accident Liability Act was passed in Korean Congress on Nov. 22, 2007 and it will be enforced in six months. The purpose of this Act is to provide reparation for the damage of the third parties that a launch causes; and the Commonwealth should be insured against any possible space accidents to pay for such a damage. Here space accident means the damages to our life, body, and properties from the launching of space objects. There should be an actual loss to establish the compensation of Liability Act. Article 2 in Liability Act defines "damage" as follows: the term "damage" means loss of life, personal injury or loss of or damage to property of persons. Physical and material damages are included in the conception of damage. The meaning of a launching includes any test launch and launch for a real arrangement which will ultimately provides a wide range of compensation. Article 4 indicates that absolute liability should be imposed in compensating for damage by space accidents. Article 4 also indicates that a launching party should be absolutely liable to compensate for the damage caused by its space object on the surface of the Earth. In general, liability stands where fault is. But if the activity is ultra-hazardous and causes serious harm, the individual needs to compensate for the damage unlimitedly. Because of the many launchings for the Seattleite launching, a launching organization is obligated to the liability insurance in preparation for the space accidents. According to the Article 6 of Space Accident Liability Act, to be insured for the compensation for damage is obligatory. It says: "In accordance with Article 11 in the Space Exploration Promotion Act, the person who wants to receive an approval f3r launching needs to be insured in compensation for the possible damage by space accidents.

• 의료법학
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• 제11권1호
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• pp.91-116
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• 2010

As Complex Regional Pain Syndrome (CRPS) is a new and rare illness, medical cause for it has not yet been clearly found out. Nevertheless, the patients continue to file lawsuits for damage compensation against wrongdoers or their insurers, claiming that the cause of the illness is certain actions of the wrongdoers. Moreover, the claim amount reaches to hundreds of millions of won through billions of won unlike other illnesses. Therefore, CRPS has become an important legal issue in the damage compensation lawsuit. Even though the wound is slight, the development and result may be serious in the case of CRPS. As a result, a sharp conflict arises even regarding medical diagnosis of CRPS in the lawsuit. And, even if the medical diagnosis of CRPS is admitted, severe debates occurs with regard to many issues, which include the causation between accident and CRPS in connection with establishment of damage compensation liability and scope of liability like anamnesis, determination standard of aftereffect disability, and scope of admitted aftereffect medical expense in connection with scope of damage compensation. In this study, I will review fundamental medical research on CRPS up to now and discuss principal legal issues in the damage compensation lawsuit focusing on lower court rulings.

• 의료법학
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• 제7권2호
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• pp.271-310
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• 2006

In the situation of bringing out of social problem about the medical accident and medical dispute, from 1988 the enactment activity for a legislative bill on conciliation of dispute has promoted, a legislative bill on prevention and relief of medical accident was again proposed in December, 2005. This bill has been faced rough going in review process of National Assembly. Because the purpose of this legislative bill is the conciliation of interest of between medical service consumer and medical service supplier, an item of issues of law is no-fault compensation scheme. However, as no-fault compensation scheme runs counter to the principle liability with fault in our civil law, as expected, whether the inducement is valid or, if induced, the problem is not must be totally reviewed. First of all, the general of principle liability without fault and especially the medical system in foreign countries are reviewed, by reviewing an issue and the pros and cons of the inducement of no-fault compensation scheme, this article draws the conclusion. After all, considering that the necessity adapting Gefahrdungschftung in medical accident as much as other industrial fields exists, the many provisions of the principle liability without fault exists in civil law and special law of our law system, and no-fault compensation scheme let legislative purpose be, to what extent, achieved by conciliating patient and doctor, the inducement of principle liability without fault in medical field is reasonable in the aspect of politic and legal system.

• 대한가정학회지
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• 제38권4호
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• pp.85-98
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• 2000

PL law seeks consumers'just compensation and effective deterrence through shirting liability principle from negligence to strict liability. Impact analysis of Product Liability(PL) Low requires consumers' perspectives. This paper performed a policy delphi to predict the impact of PL law on consumers. The study surveyed the opinions of 30 specialists in PL area, ranging from government, officials, professors, researchers, consumer activists, to business executives, for three times. The consumer are as follows: first of all, PL law can contribute to damage compensation significantly in that it stimulates consumer complaints through non- court procedures. It is very unlikely that suits will be increased rapidly due to PL because of the current law environment. The degree of influence of PL law on damage compensation will very according to the content of PL law. Secondly, PL law can contribute to deterrence in that it encourages companies' efforts for product safety while it doesn't undermine consumers' attentions to safety. The influence on companies' efforts will vary according to the content of PL law.

• 항공우주정책ㆍ법학회지
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• 제9권
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• pp.277-298
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• 1997

Air transportation industry was established on a basis of liability limitation from the outset. Many treaties, however, had to be drafted since 1960' s to meet the need of the Unites States, who argued full compensation without limitation like other torts cases, but most of them were in vain. The Japanese Initiative in 1992, though being aimed to lower a level of compensation in air crash cases to that of other transportation accidents, showed a way to the U.S. how to solve the issue. Instead of obtaining an multilateral agreement through ICAO, the U.S. persuaded IATA to organize intercarrier consensus for voluntary waive the limitation. IATA succeeded in adopting Intercarrier Liability Agreement in 1995, in which carriers agreed not to use Warsaw limitation and accepted strict liability up to 100,000SDRs. Through a series of negotiation to implement the Intercarrier agreement, US DOT tried to insert a domicile standard provision to the agreement which enable US victims to be compensated according to the law of the U.S. regardless of the situation. IATA opposed the intent aggressively. The U.S. set back to the starting point remaining issues for further discussion. The liability limitation under the Warsaw system is being collapsed. It is the result of a simple logic; liability limitation cannot be maintained without appropriate compensation.