• The Korean Society of Law and Medicine
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• v.11 no.1
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• pp.331-393
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• 2010

Psychiatrists who treat violent or potentially violent patients may be sue for failure to control aggressive outpatients and for the discharge of violent inpatients. Psychiatrists may be sued for failing to protect society from the violent acts of their patients if it was reasonable for the psychiatrists to have known or should have known about the patient's violent tendencies and if the psychiatrists could have done something that could have safeguarded in public. The courts of a number of jurisdictions have imposed a duty to protect the potential victims of a third party on persons or institutions with a special relationship to that party. In the landmark case of Tarasoff v Regents of University of California, the California Supreme Court held that the special relationship between a psychotherapist and a patient imposes on the therapist a duty to act reasonably to protect the foreseeable victims of the patient. Under Tarasoff, when a therapist has determined, or under applicable professional standards should determine, that a patient poses a serious threat of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. In addition to a Tarasoff type of action based on a duty to warn or protect foreseeable victims of psychiatric outpatients, courts have also imposed liability on mental health care providers based on their custody of patients known to have violent propensities. The legal duty in such a case has been stated to be that where the course of treatment of a mental patient involves an exercise of "control" over him by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls on the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient. After going through a period of transition, from McIntosh, Thompson and Brady case, finally, the narrow rule of requiring a specific or foreseeable threat of violence against a specific or identifiable victim is the standard threshold or trigger element in the majority of states. Judgements on these kinds of cases are not enough yet in Korea, so that it may be too early to try find principles in these cases, however it is hardly wrong to read the same reasons of Tarasoff in the judgements of Korea district courts. To specific, whether a psychiatric institute was liable for violent behavior toward others depends upon the patients conditions, circumstances and the extent of the danger the patients poses to others; in short, the foreseeability of a specific or identifiable victim. In this context if a patient exhibit strong violent behavior toward others, constant observation should be required. Negligence has been found not exist, however, when a patient abruptly and unexpectedly attack others or unidentifiable victim. And the standard of conduct that is required to meet the obligation of "due care" is based on what the "reasonable practitioner" would do in like circumstances. The standard is not one of excellence or superior practice; it only requires that the physician exercise that degree of skill and care that would be expected of the average qualified practitioner practicing under like circumstances. All these principles have been established in cases of the U.S.A and Japan. In this article you can find the reasons which you can use for psychotherapist's liability for failure to protect third person in Korea as practitioner.

• The Korean Journal of Air & Space Law and Policy
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• v.33 no.2
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• pp.345-366
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• 2018

Article 37 of the International Convention on Civil Aviation requires that rules should be adopted to keep in compliance with international standards and recommended practices established by ICAO. As SARPs are revised annually, each ICAO Member State needs to reflect the new content in its national aviation Acts in a timely manner. In recent years, data-driven international standards have been developed because of the important roles of aviation safety data and information-based legislation in accident prevention based on human factors. The Safety Management System and crew Fatigue Risk Management Systems were reviewed as examples of the result of data-driven rulemaking. The safety management system was adopted in 2013 with the introduction of Annex 19 and Chapter 5 of the relevant manual describes safety data collection and analysis systems. Through analysis of safety data and information, decision makers can make informed data-driven decisions. The Republic of Korea introduced Safety Management System in accordance with Article 58 of the Aviation Safety Act for all airlines, maintenance companies, and airport corporations. To support the SMS, both mandatory reporting and voluntary safety reporting systems need to be in place. Up until now, the standard of administrative penal dispensation for violations of the safety management system has been very weak. Various regulations have been developed and implemented in the United States and Europe for the proper legislation of the safety management system. In the wake of the crash of the Colgan aircraft, the US Aviation Safety Committee recommended the US Federal Aviation Administration to establish a system that can identify and manage pilot fatigue hazards. In 2010, a notice of proposed rulemaking was issued by the Federal Aviation Administration and in 2011, the final rule was passed. The legislation was applied to help differentiate risk based on flight according to factors such as the pilot's duty starting time, the availability of the auxiliary crew, and the class of the rest facility. Numerous amounts data and information were analyzed during the rulemaking process, and reflected in the resultant regulations. A cost-benefit analysis, based on the data of the previous 10 year period, was conducted before the final legislation was reached and it was concluded that the cost benefits are positive. The Republic of Korea also currently has a clause on aviation safety legislation related to crew fatigue risk, where an airline can choose either to conform to the traditional flight time limitation standard or fatigue risk management system. In the United States, specifically for the purpose of data-driven rulemaking, the Airline Rulemaking Committee was formed, and operates in this capacity. Considering the advantageous results of the ARC in the US, and the D4S in Europe, this is a system that should definitely be introduced in Korea as well. A cost-benefit analysis is necessary, and can serve to strengthen the resulting legislation. In order to improve the effectiveness of data-based legislation, it is necessary to have reinforcement of experts and through them prepare a more detailed checklist of relevant variables.

• The Korean Journal of Air & Space Law and Policy
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• v.33 no.1
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• pp.205-226
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• 2018

For sustainable development of air transport, the establishment and application of international standards of environmental protection area is significant. The development and use of alternative fire extinguishing agent to Halon, which is used for the fire extinguishing systems of engine nacelles/APU and cargo compartments, has been requested in order to protect the ozone layer. The ICAO has been active in preparing international standards and recommended practices (SARPs); however, certification of alternative fire extinguishing agents has been postponed due to technical readiness problem.. Consequently, the implementation of SARPs has also been postponed by two years from the end of 2016. to the end of 2018. As such consequences have caused confusion among Member States regarding its implementation, it is necessary to discuss and pay more attention to this issue. ICAO Council and Air Navigation Commission should consider between setting the implementation time frame earlier or giving enough time for mature readiness and preparedness. Also in order to minimize the unnecessary discharge of Halon owned by Member States, it is necessary to consider efficient management methodologies; for example, requesting fire extinguisher manufacturers to recharge in professional ways. For the successful implementation of the SARPs, ICAO developed an implementation task list as including notification of differences, establishment of a national implementation plan, drafting of the modification to the national regulations and means of compliance, adoption of the national regulations and means of compliance. Member States can develop their own rule making process in reference with the ICAO implementation task list. This issue was presented and discussed during the 54th Conference of Directors General of civil aviation, Asia and Pacific Regions which was held in Ulaanbaatar, Mongolia in 2017 with significant attention among participated Contacting States. In this regards, ICAO Council and Air Navigation Commission should consult with Legal Bureau lawyers regarding SARPs preparing process to eliminate difficulties and confusions for proper implementation within effective date.

• Journal of the Daesoon Academy of Sciences
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• v.30
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• pp.235-270
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• 2018

The term, Degree Number, was religiously re-interpreted by Jeungsan (甑山) Kang Il-Sun (姜一淳, 1871~1909) and used by him to imply 'the principle of ruling the world.' It was especially the case that his usage of Degree Number referred to the new law that will rule during the Later World, and the significance of this was promoted during Jeungsan's Reordering Works of Heaven and Earth. And Jeongsan (鼎山) Jo Cheol-Je (趙哲濟, 1895~1958), who received a revelation from Jeungsan, established new religious movements including Mugeuk-do and Taegeuk-do and gave a broader meaning to the term Degree Number which he adopted from Jeungsan. He endowed it with the additional meaning of 'all the religious activities performed to achieve an ideal world.' In the history of Korean religions, Degree Number was newly interpreted by the religiously-gifted Jeungsan, who appeared at the end of the Joseon Dynasty. The lineage of religious thought related to Degree Numbers was constantly transmitted through Mugeuk-do and Taegeuk-do both of which were founded by Jeongsan Jo Cheol-Je. Later, Park Han-Gyeong (朴漢慶, 1917~1996) succeeded this lineage when he established Daesoon Jinrihoe in 1969. Religious thought related to Degree Numbers came from Jeungsan's self-realization that he was 'Sangje (the Supreme God).' The thought was also formed by his religious declaration wherein he changed the Degree Number of mutual contention in the Former World to that of mutual beneficence in the Later World. What Jeungsan emphasized was the fluidity of Degree Numbers. Just like human beings are never able to escape from the bonds of their destiny, in Jeungsan's thought, forced or ordained cosmic orders do not exist. In the outworn world of the past, which has been defined as the Former World, the Degree Number was recognized as the ordained law and norm, but as the Later World was coming, Jeungsan recalibrated the Degree Number and defined it anew through his own authority and power as the Supreme God. Jeongsan recalibrated many Degree Numbers throughout his life. The number of Degree Numbers which Jeungsan recalibrated is relatively fewer than that of Jeongsan, who inherited the thought of Jeungsan, and then went on to categorize almost every major religious activity he performed a Degree Number. In this context, Jeungsan's 'Degree Number' became expanded and broadened in terms of its scope.

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

• Journal of Environmental Health Sciences
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• v.10 no.2
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• pp.9-40
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• 1984

This thesis purports to overview the diverse administrative and organizational factors and plannings developed by the government organizations, municipal or otherwise, to tackle the Han River water pollution issues in the past years. This thesis also looks into the ever-worsening Han River water pollution problems, in particular, in terms of the various government plans ostensibly designed to reduce the pollution level but with little success. Also dealt with are the efficiencies with which the laws and decrees on water pollution the administrative organizations put to use in the prosecution of the diverse antiwater pollution projects involving the Han River basin. From the early 1960's up to the 1970's the government had concentrated on the growth-oriented economic policy with the result that little attention had been paid to the water pollution and other environmental issues that are bound to arise from the massive economic growth. Belatedly, the five-year Hah River Development Project was initiated in 1982 with emphasis on reducing the water pollution level at Hah River to the minimum. The following are the gists of the thesis and recommendations for the future antiwater pollution plans by the administrative organizations: 1. Documents to date indicate that the irrigation projects along the Han River area had been the main focus of attention during the Yi Dynasty and under the Japanese rule of the country. 2. Despite that the water pollution issue became the subject of many debates among the academic and research institutions in the 1960's and in the 1970's, the administrative organizations in charge of the Han River water quality control failed to come up with a concrete plan for the river's water quality control. 3. Nevertheless, the water pollution of the Han River area in fact began in the 1950's, with the unprecedented concentration into Seoul of population and the industrial facilities on a larger scale, in particular, enforced by the government's strong growthoriented policy in its Economic Development plans in the 1960's. 4. Starting in the 1960's, the Han River water pollution level dramatically increased, but the government was reluctant to promulgate or put into effect strong measures to curb the many factors contributing to the river water pollution, thus worsening the environmental issues along the Han River basin. 5. The environmental protection law and other laws and decrees relating to the antiwater and air pollution issues that were subsequently put into effect underwent so many changes that efficient anti-water pollution policies could not be effected for the Han River basin. The frequent organizational reshuffle within the administrative units concerned with environmental problems has resulted in the undue waste in personnel management and finance. 6. The administration on the environmental protection could not be efficiently carried out due to the organizational overlapping. Under the existing law, frequent organizational frictions and inefficiency are bound to occur among the central government offices themselves, as well as between the central government and the Seoul city administration, and among the city's administrative offices over the conservation of the Han River basin and over the river's anti-water pollution issue. 7. In the planning and prosecution of the Han River project, political influences from the president down to the lower-level politicious appear to have been involved. These political influences in the past had certainly had negative influence on the project, nevertheless, it appears that in the recent years, these political influences are not all that negative in view of the fact that they serve as a positive contributing factor in developing a better water quality control project along the Han River basin. The following are a few recommendations based on the data from the thesis: First, officials in charge of the Han River water quality control should pay attention to a careful screening of the opinions and recommendations from the academic circles and from the public should be made so that the government could better grasp the core issues in the environmental problems that require preventive and other necessary measures. Second, vigorous redistribution policies of population and industrial facilities away from the Seoul area should be pursued. Third, the government should refrain from revising or revamping too frequently the laws and decrees on the anti-water pollution, which is feared to cause undue inconveniences in the environmental administration. Fourth, a large-scale streamlining should be made to the existing administrative organization in an effort to do away with the inter- and intra-organizational friction. It is recommended that a secretariat for the Hah River basis conservation be established. Fifth, High-level administrative officials, with a thorough knowledge and vision on the Han River water quality control, should be prepared to better deal with the budgeting and personnel management for the Han River water pollution control not only at the control government, but also at the Seoul city municipal government levels. Environmental issues should be kept distinct from political issues. Environmental issues should not serve as a window-dressing for sheer political purposes. Sixth, the Hah River proiect should also include, along with the main Han River basin, those areas covering North Han River, South Han River, and the tributaries to the main river basin. The 'Han River Basin Water Quality Control Board' should be established immediately as a means of strengthening the current Han River basin water quality control policy. Seventh, in drawing up the Han River proiect, the administrative officials should be aware that Han River basin is a life line for those people in the region, providing them with not only a sheer physical space, but with a psychological living space for their everyday life.

• Korean Journal of Heritage: History & Science
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• v.48 no.3
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• pp.30-45
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• 2015

The purpose of this study is to demonstrate that transmissions of an intangible cultural heritage in Korea may be cut off because it is separated from human and social environment and protected and managed under the national system. In addition, another purpose is to criticize concept and method dichotomy in the current institution from an ecological perspective and consider the problem that the intangible cultural heritages are transmitted mainly by holders having skills and accomplishments by distinguishing them from others. Furthermore, the last purpose is to suggest a direction of policy emphasizing an importance of establishment of environment which allows nurture, change and development of local people, which may ensure continuous transmission in order to solve the problem and a transmission system of the intangible cultural heritage by using a principle in which the system is operated by self-recovery and natural rule of the ecology. The findings of this study show that seven problems can be analyzed by reviewing concept establishment and protection and transmission measure of intangible cultural heritages according to the Cultural Properties Protection Law, based on the ecological perspective. The protection and transmission methods of the intangible cultural heritage through the cultural heritage ecology are suggested by applying ecological theory to it. The intangible cultural heritage ecology defined in this paper means 'a sustainable community consisting of intangible cultural heritage, subject of activity and physical environment.' Since it is operated according to the principle reflecting the rules and features of natural ecology, it can keep system through self-recovery without an external intervention, as the case of natural ecology.

• The Korean Journal of Air & Space Law and Policy
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• v.31 no.2
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• pp.3-35
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• 2016

The United States Constitution gives power to the federal district courts to hear admiralty cases. 28 U.S.C. §.133, which states that "The district courts shall have original jurisdiction, exclusive of the Courts of the States, of any civil case of admiralty or maritime jurisdiction." However, the determination of whether a case is about admiralty or maritime so that triggers admiralty jurisdiction was not a simple question. Through numerous legal precedents, the courts have drawn a line to clarify the boundary of admiralty cases. This unique jurisdiction is not determined by the mere involvement of a vessel in the case or even by the occurrence of an event on a waterway. As a general rule, a case is within admiralty jurisdiction if it arises from an accident on the navigable waters of the United States (locus test) and involves some aspect of maritime commerce (nexus test). With regarding to the maritime nexus requirement, the US Supreme Court case, Executive Jet Aviation, Inc. v. City of Cleveland, held that federal courts lacked admiralty jurisdiction over an aviation tort claim where a plane during a flight wholly within the US crashed in Lake Erie. Although maritime locus was present, the Court excluded admiralty jurisdiction because the incident was "only fortuitously and incidentally connected to navigable waters" and bore "no relationship to traditional maritime activity." However, this historical case left a milestone question: whether an aircraft disaster occurred on navigable water triggers the admiralty jurisdiction, only for the reason that it was for international transportation? This article is to explore the meaning of admiralty jurisdiction over aviation accidents at US courts. Given that the aircraft engaged in transportation of passenger and goods as the vessels did in the past, the aviation has been linked closely with the traditional maritime activities. From this view, this article reviews a decision delivered by the Seventh Circuit regarding the aviation accident occurred on July 6, 2013 at San Francisco International Airport.

• Journal of Korea Port Economic Association
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• v.30 no.4
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• pp.111-130
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• 2014

The article 742(2) of the Korean Commercial Code allowed the third party to invoke a direct action against the insurer under a liability insurance. Meanwhile, the owners of the vessel enter into the P&I Insurance Contract with the P&I Club to indemnify all kinds of liability or expenses involved in the operation of its vessel. However, the Rule Book under the P&I Insurance mostly included the Pay to be Paid Clause which precludes the third party's direct action. Recently, the Seoul Central District Court passed a judgement on the validity of the Pay to be Paid Clause under the Korean law against the third party i.e. the cargo insurer having the right of subrogation. The court held that (1) the third party's right of direct action is not the right to claim insurance money but the right to claim damages against the P&I Club, (2) the insurer under a liability insurance is deemed to assume liability jointly and severally with the insured against the third party, (3) the Article 742(2) of the Korean Commercial Code is considered as a compulsory provision because it was invented to protect the innocent third party, the Paid to be Paid Clause is thus null and void. The purpose of this article is to evaluate the appropriateness of this court's judgments by comparative analysis of Korean and English law, and to suggest the relevant amendments of the Korean Commercial Code in order to prevent further legal disputes. The article criticizes the decision of the Seoul Central District Court, taking the attitude that, since the third party's right is the right to claim insurance money, the Paid to be Paid Clause is valid against the third party.

• Korean Security Journal
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• no.42
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• pp.361-391
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• 2015

Regarding the [Government Organization Act; which is legislated on 19th November, 2014] Korea Coast Guard(KCG) has been re-organized and belong from Korea Coast Guard shall be established under the Minister of Oceans and Fisheries to Ministry of Public Safety and Security. Furthermore, National Police Agency(NPA) Commissioner has the right for administer duties concerning investigation and information by succession from Korea Coast Guard Commissioner. That means that main rule has been moved from prior KCG to Ministry of Public Safety and Security(MPSS) and NPA currently which is dual structure. Meanwhile, This kind of organization change has been effective to investigative agency which exert KCG's call of duty and causes needs of variety problems. In other words, There are quite huge changes such as KCG's reduction of their work, call of duty and re-organization regarding revised government organization act. However this change - including re-organization by government, was not able to take current MPSS's special features such as organization specialty and legal rights. It means, the current change has not been taken present law system CRIMINAL PROCEDURE LAW and there was no preparation to stable maritime police authority action as well. To sum up, this revised GOVERNMENT ORGANIZATION ACT is supposed to provide total, quick security service by establishing strong disasters and safety control tower. However they only contains few area such as organization revision regarding 'Sewol Ferry Disaster', they was not able to contain the other parts of Society. Therefore, in this article I would like to check the part of re-evaluation of current change made by KCC's organization revision. It is supposed to provide better legal stability by making clear of work area by government agencies who acts maritime police authority.