• The Korean Journal of Air & Space Law and Policy
• /
• v.9
• /
• pp.277-298
• /
• 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.

• The Journal of the Korea Contents Association
• /
• v.19 no.4
• /
• pp.423-431
• /
• 2019

This study examines the effect of the liability limitation provision (LLP) adoption on firm's cost behavior. In April 2011, Korea introduced the LLP with the purpose of improving the management efficiency by mitigating the risks caused by the manager's failure to make decisions related to business operation. However, there are concerns that the adoption of LLP may lead the manager's moral hazard, so the need for empirical research to verify the effect of the LLP adoption is emphasized. In this study, we analyze the effect of the LLP adoption empirically, focusing on the cost behavior that is affected by the manager's decision making. From the empirical result, we find that LLP adopted companies have strengthened the cost stickiness of selling, general, and administrative costs rather than non-adopted companies. This suggests that the manager of LLP adopted company makes a more active decision to consider adjusting costs in order to prepare for future recovery in sales when sales is reduced. This study presents empirical evidence to prove the policy validity of the adoption of LLP, and we expect that our results can contribute to the capital market and academia.

• The Korean Journal of Air & Space Law and Policy
• /
• v.1
• /
• pp.47-85
• /
• 1989

The Fundamental purpose of the Warsaw Convention was to establish uniform rules applicable to international air transportation. The emphasis on the benefits of uniformity was considered important in the beginning and continues to be important to the present. If the desire for uniformity is indeed the mortar which holds the Warsaw system together then it should be possible to agree on a worldwide liability limit. This liability limit would not be so unreasonable, that it would be impossible for nations to adhere to it. It would preclude any national supplemental compensation plan or Montreal Agreement type of requirement in any jurisdiction. The differentiation of liability limits by national requirement seems to be what is occurring. There is a plethora of mandated limits and Montreal Agreement type 'voluntary' limits. It is becoming difficult to find more than a few major States where an unmodified Warsaw Convention or Hague Protocol limitation is still in effect. If this is the real world in the 1980's, then let the treaty so reflect it. Upon reviewing the Warsaw Convention, its history and the several attempts to amend it, strengths become apparent. Hijackings of international flights have given rise to a number of lawsuits by passengers to recover damages for injuries suffered. This comment is concerned with the liability of an airline for injuries to its passengers resulting from aviation terrorism. In addition, analysis is focused on current airline security measures, particularly the pre-boarding screening system, and the duty of air carriers to prevent weapons from penetrating that system. An airline has a duty to exercise a high degree of care to protect its passengers from the threat of aviation terrorism. This duty would seemingly require the airline to exercise a high degree of care to prevent any passenger from smuggling a weapon or explosive device aboard its aircraft. In the case an unarmed hijacker who boards having no instrument in his possession with which to promote the hoax, a plaintiff-passenger would be hard-pressed to show that the airline was negligent in screening the hijacker prior to boarding. In light of the airline's duty to exercise a high degree of care to provide for the safety of all the passengers on board, an acquiescene to a hijacker's demands on the part of the air carrier could constitute a breach of duty only when it is clearly shown that the carrier's employees knew or plainly should have known that the hijacker was unarmed. A finding of willful misconduct on the part of an air carrier, which is a prerequisite to imposing unlimited liability, remains a question to be determined by a jury using the definition or standard of willful misconduct prevailing in the jurisdiction of the forum court. Through the willful misconduct provision of the Warsaw Convention, air carrier face the possibility of unlimited liability for failure to implement proper preventive precautions against terrorist. Courts, therefore, should broadly construe the willful misconduct provision of the Warsaw Convention in order to find unlimited liability for passenger injuries whenever air carrier security precautions are lacking. In this way, the courts can help ensure air carrier safety and prevention against terrorist attack. Air carriers, therefore, would have an incentive to increase, impose and maintain security precautions designed to thwart such potential terrorist attacks as in the case of Korean Air Lines Flight No.858 incident having a tremendous impact on the civil aviation community. The crash of a commercial airliner, with the attending tragic loss of life and massive destruction of property, always gives rise to shock and indignation. The general opinion is that the legal system could be sufficient, provided that the political will is there to use and apply it effectively. All agreed that the main responsibility for security has to be borne by the governments. I would like to remind all passengers that every discovery of the human spirit may be used for opposite ends; thus, aircraft can be used for air travel but also as targets of terrorism. A state that supports aviation terrorism is responsible for violation of International Aviation Law. Generally speaking, terrorism is a violation of international law. It violates the soverign rights of the states, and the human rights of the individuals. I think that aviation terrorism as becoming an ever more serious issue, has to be solved by internationally agreed and closely co-ordinated measures. We have to contribute more to the creation of a general consensus amongst all states about the need to combat the threat of aviation terrorism.

• The Korean Journal of Air & Space Law and Policy
• /
• v.29 no.2
• /
• pp.55-86
• /
• 2014

The U.S. General Aviation Revitalization Act of 1994 (the "GARA") created a statute of repose that bars any claims arising from an aviation product or component more than 18 years after its date of delivery. The statute was enacted to protect general aviation aircraft manufacturers from the excessive product liability costs. The GARA included four exceptions: (a) medical emergency patients, (b) those not on the aircraft, (c) those based on written warranties, and (d) those causally related to a "knowing misrepresentation" made by the manufacturer to the FAA. The GARA also incorporates a provision for revised starting point of reckoning to which any repairs or replacements of an aviation product. This note aimed to discuss General Aviation and GARA in depth including the meaning of statue of repose, its exceptions. The various precedents about GARA were also reviewed in here as well. From the GARA, as a comparative legal issue in aviation product liability, there can be some suggestions for revision of Korean Products Liability Act. First, it seems to be reasonable to regulate the specific statute of repose provisions for various category of products. In GARA, the period of 18 years is reasonable concerning to the average aircraft life. Second, in order to avoid exhausting debate and for the judicial economy, it needs to clarify when the statute begins to run. GARA's 18 year limitation period begins to run on the different date whether it was delivered to its first purchaser or a person engaged in the business of selling the aircraft. Last but not least, proper exceptions should be added into the law for equity matter of the statute of repose does not apply. For example, a manufacturer is not protected by GARA if it knowingly misrepresents certain safety information to the FAA.

• Journal of Digital Convergence
• /
• v.12 no.1
• /
• pp.13-21
• /
• 2014

The problem of the cases of Soribada and Winny is their duplexity that they could be used legally and illegally. The issue called 'The crime of aiding through the neutral behavior' is about whether the program developer who shared the file sharing program letting unspecified public infringe the copyright could be punished or not. Many theories about limiting the traditional scope of punishment of aider have been maintained. However, it is questionable whether it is possible to limit the scope of punishment following the former cases and theories even for the action that is causal and facilitates the principal's criminal conduct, like the aid through the neutral action which is hard to perceive as illegal aid because of its characteristics. Therefore, using the case of Soribada in Korea and the case of Winny in Japan as the examples of illegal aid through neutral behavior case, this paper examines the characteristics and problems of aid through existing theories and cases, and suggests new scope of punishment limitation standard through the elaboration of the action of aid and judgment of degree.

• The Korean Society of Law and Medicine
• /
• v.17 no.1
• /
• pp.299-346
• /
• 2016

There were also various decisions made in medical area in 2015. In the case that an inmate in a sanatorium was injured due to the reason which can be attributable to the sanatorium and the social welfare foundation that operates the sanatorium request treatment of the patient, the court set the standard of fixation of a party in medical contract. In the case that the family of the patient who was declared brain dead required withdrawal of meaningless life sustaining treatment but the hospital rejected and continued the treatment, the court made a decision regarding chargeable fee for such treatment. When it comes to the eye brightening operation which received measure of suspension from the Ministry of Health and Welfare for the first time in February, 2011, because of uncertainty of its safety, the court did not accept the illegality of such operation itself, however, ordered compensation of the whole damage based on the violation of liability for explanation, which is the omission of explanation about the fact that the cost-effectiveness is not sure as it is still in clinical test stage. There were numerous cases that courts actively acknowledged malpractices; in the cases of paresis syndrome after back surgery, quite a few malpractices during the surgery were acknowledged by the court and in the case of nosocomial infection, hospital's negligence to cause such nosocomial infection was acknowledged by the court. There was a decision which acknowledged malpractice by distinguishing the duty of installation of emergency equipment according to the Emergency Medical Service Act and duty of emergency measure in emergency situations, and a decision which acknowledged negligence of a hospital if the hospital did not take appropriate measures, although it was a very rare disease. In connection with the scope of compensation for damage, there were decisions which comply with substantive truth such as; a court applied different labor ability loss rate as the labor ability loss rate decreased after result of reappraisal of physical ability in appeal compared to the one in the first trial, and a court acknowledged lower labor ability loss rate than the result of appraisal of physical ability considering the condition of a patient, etc. In the event of any damage caused by malpractice, in regard to whether there is a limitation on liability in fee charge after such medical malpractice, the court rejected the hospital's claim for setoff saying that if the hospital only continued treatments to cure the patient or prevent aggravation of disease, the hospital cannot charge Medical bills to the patient. In regard to the provision of the Medical Law that prohibit medical advertisement which was not reviewed preliminarily and punish the violation of such, a decision of unconstitutionality was made as it is a precensorship by an administrative agency as the deliberative bodies such as Korean Medical Association, etc. cannot be denied to be considered as administrative bodies. When it comes to the issue whether PRP treatment, which is commonly performed clinically, should be considered as legally determined uninsured treatment, the court made it clear that legally determined uninsured treatment should not be decided by theoretical possibility or actual implementation but should be acknowledged its medical safety and effectiveness and included in medical care or legally determined uninsured treatment. Moreover, court acknowledged the illegality of investigation method or process in the administrative litigation regarding evaluation of suitability of sanatorium, however, denied the compensation liability or restitution of unjust enrichment of the Health Insurance Review & Assessment Service and the National Health Insurance Corporation as the evaluation agents did not cause such violation intentionally or negligently. We hope there will be more decisions which are closer to substantive truth through clear legal principles in respect of variously arisen issues in the future.