항공기에 의한 지상 제3자의 손해에 대한 국제법적 규율 : 로마협약체제의 현대화 작업을 중심으로 = Damage caused by Aircraft to Third Parties on the Surface : Focusing on the Modernization of the Rome Convention

국문 초록 (Abstract)

비행중의 항공기의 추락, 충돌 또는 그로부터 사람이나 물건이 낙하하여 지상의 제3자에게 손해가 발생하였을 때 운항자는 배상할 의무를 부담하게 되는데, 항공기술의 발달과 국내외 항공운송시장의 성장에 비례하여 지상 제3자에 대한 항공사고발생의 위험도 점차 증가하고 있는 실정이다. 이에 따라 운송인의 지상 제3자 책임을 규율하기 위하여 1933년 로마협약, 1952년 로마협약 그리고 1972년 로마협약이 체결, 발효되었지만 많은 국가들의 비준을 받지 못하였다. 그 이유는 조약에서 규정된 책임배상한도가 너무 낮게 책정되었다는 점, 각국이 지상 제3자를 위한 적절한 보호조항을 두었으므로 그 부분에 대해서는 구체적인 규칙 같은 것은 필요하지 않다는 점, 협약은 소음과 초음속충격파 또는 핵 피해 같은 문제는 다루지 않았다는 점, 하나의 재판관할권만을 인정했다는 점 등을 들 수 있다.
1933년, 1952년 그리고 1978년 로마협약체제는 소수의 국가들만이 비준을 하였기 때문에 전 세계적으로 중요한 영향을 미치지 못하였으며, 그것들은 더 이상 통일적 규범으로 이용되지 못하고 있어, 지상 제3자 책임에 관하여 전 세계적으로 적용되는 통일적 규범의 개발이 필요하게 되었다. 그리고 로마협약의 발효 이후 많은 사회, 경제적 변화가 발생하였기에 항공기로 인해 발생한 손해의 피해자를 두텁게 보호하기 위하여 무한책임원칙으로 향하는 국제법의 경향을 반영하고 환경적 손해에 대한 배상을 다루는 것이 요구되었다. 또한 9/11 테러와 같은 대규모 손해가 발생한 경우에 항공보험의 부보 가능성을 확보하고 충분한 희생자의 보호와 항공기운송기업의 위험을 분산하기 위한 제도의 개발도 필요하게 되었다. 이에 따라 기존의 로마협약체제 현대화에 대한 공감대가 확대되었고 ICAO는 2000년 초부터 로마협약의 재검토 및 현대화를 위해 노력하였다.
현대화 작업의 결과 지상 제3자에 대한 손해를 일반위험과 불법방해로 나누어서 규율하기로 확정하여 2개의 협약 초안을 작성하였다.
일반위험협약초안의 내용은 엄격책임과 과실책임, 유한책임과 무한책임을 혼합하는 형태로 형성되었으며 기존의 로마협약과 비교하여 몇 가지 변화가 있었다. 그 중 가장 중요한 변화는 단순히 유한책임주의를 택하고 상한선만 높이는 해결 방법이 아니라 무한책임주의를 채택한 것이다. 이는 1999년 몬트리올 협약의 영향을 받은 것으로 기존 로마협약보다 피해자 보호에 더 중점을 둔 것이다. 그러나 운항자가 발생한 손해에 대하여 그러한 손해가 운항자 또는 그의 사용인이나 대리인의 과실 또는 불법의 작위나 부작위로 인한 것이 아니라는 것 또는 그러한 손해가 오직 타인의 과실 또는 불법의 작위나 부작위로 인한 것임을 입증하는 경우에 일정한 액수를 초과하는 범위만큼에 대하여 책임을 지지 않는다고 규정하여 항공업계의 이익과 피해자 보호 사이의 균형을 맞추려고 노력하였다. 그 밖에도 비행중의 개념을 확장하고 협약의 적용 범위를 로마협약에 비하여 확장하였고 공중충돌의 문제도 포함시켰다. 또한 전쟁 및 내전 상황에서도 엄격책임이 유지되도록 하여 피해자 보호를 강화하였다. 그러나 소음, 초음속충격파 또는 핵으로 인한 환경적 손해는 제대로 규율하지 못하였고, 정신적 손해도 제한적으로만 보상받을 수 있게 하였다. 제33차 법률위원회에서는 일반위험협약초안은 불법방해협약초안에 비해 많은 합의점을 도출하였고, 피해자 보호와 항공업계의 이익을 균형적으로 규율하여 향후 협약의 성립과 다수 국가가 가입이 기대된다.
불법방해로 인한 제3자 피해는 1999년 몬트리올 협약의 피해자와는 달리 운항자와 계약적 연관이 없으며, 위험을 예측할 수 없기에 보험가입 등을 통해 위험을 흡수할 수 없고 항공기사고에 있어 제3자에게 발생할 수 있는 총 손해는 엄청나서 기내의 여객 및 화물이 집합적으로 입은 손실의 범위를 뛰어넘게 됨으로 몬트리올 협약의 제도에 의하여 적절히 다루어질 수 없다. 오히려 제3자 손해는 많은 면에 있어서 원자력책임협약이나 유류오염책임협약의 제3자 손해와 유사하다. ICAO는 유류오염책임협약을 참조하여 SCM을 비롯한 다음과 같은 배상제도를 만들었다. 첫째는 운항자가 전쟁위험을 통하여 일정한 수준까지 배상하는 것이고, 둘째는 SCM을 통한 것이며, 셋째는 구속력이 없고 구체화되지 않은 것이지만, 관련 정부가 각국의 법과 정책에 따라 배상을 제공하는 것이다. 불법방해협약초안의 경우 불법방해의 정의, 운항자의 책임, SCM의 설치, 운영 문제와 관련하여 국가간 상반된 입장이 표명되었다. 특히 SCM과 관련된 문제를 해결하기 위해서는 예상보다 많은 시간과 노력이 필요할 것이다. 이러한 문제가 해결되지 않으면 불법방해협약초안의 성립은 불투명하며, 국제협약으로 성립되더라도 협약의 내용에 따라 많은 국가들이 비준하지 않거나 국제항공운송 주요 국가들이 비준을 거부하여 협약 자체가 무의미하게 될 가능성도 배제할 수 없다.
협약안에 관하여 당사국들의 의견의 대립의 원인은 결국 첫째, 법기술적인 경우, 둘째, 각국의 법체계가 상이하여 비준가능성에 문제가 있는 경우, 셋째, 선진국과 개발도상국처럼 보험능력에 차이가 있거나 테러위험성이 적어 국가간의 이해가 대립하는 경우로 나눌 수 있다. 이러한 대립은 해결불가능한 것은 아니며, 일정한 정도의 타협이나 조약의 유보, SCM의 적절한 운영을 통하여 많은 대립부분을 해결할 수 있을 것이다.
우리나라는 1933년, 1952년 로마협약 및 1978년 개정로마협약에 가입한 바가 없으며, 항공운송의 특수성을 반영한 항공운송인의 지상 제3자 책임 규정 또한 명확히 입법화되어 있지 않았었기 때문에 제3자 손해에 대한 운항자의 배상책임은 민법상의 불법행위 규정을 적용할 수밖에 없었다. 그러나 민법상의 불법행위책임 규정에 따르면 항공기로 인해 지상 제3자에게 손해가 발생한 경우에 가해자의 고의, 과실의 입증책임을 피해자가 부담하게 되는데, 항공운송기술의 발달 및 항공기의 고도의 복잡성과 운항정보에의 접근의 어려움으로 인하여 피해자가 가해자의 고의, 과실을 입증한다는 것은 사실상 거의 불가능에 가까우며, 또한 지극히 장시간을 기다려야 한다.
그리고 항공관련 산업이 나날이 발전하고 있고, 특히 항공기를 이용한 수송은 일상화, 보편화되었으며, 가까운 장래 초대형항공기의 등장이 예정되어있어 현재보다 더 큰 대형위험이 예상된다. 따라서 로마협약체제 및 외국의 입법례를 반영하여 피해자의 고의, 과실의 입증곤란을 구제하고, 신속하고 충분한 손해배상이 이루어질 수 있도록 무과실책임원칙 및 무한책임원칙을 기반으로 하여 운송인의 제3자 책임에 대한 국내의 입법조치가 필요하다. 이에 정부에서는 상법이 제6편 제3장에 지상 제3자의 손해에 대한 책임에 대하여 입법 중에 있는데 조속한 통과를 기대한다.

다국어 초록 (Multilingual Abstract)

The problem involved in cases of damage caused by aircraft to third parties on the surface occurs when an aircraft in flight falls or aircrafts make a collision or some objects are fallen from an aircraft. How to regulate damage sustained by third parties is a important problem. To regulate this problem, the 1933 Rome Convention, the 1952 Rome Convention and the Montreal Protocol were made. But, They did not attract many ratifications. The reasons for this rather spectacular lack of interest are that the limits for compensation in the Conventions were considered too low; national legislation provided adequate safeguard for the interests of third parties; the Conventions did not deal with problems such as noise, sonic boom, or nuclear damage; there were objections against creating only one forum.
Only small number of nations ratify the 1933 Rome Convention, the 1952 Rome Convention and the Montreal Protocol and that number did not include major powers. So Rome Convention did not function as a unification rule. There were many social and economic changes after the Rome Convention. Limited liability in the Rome Convention is not sufficient to protect third parties on the surface. It is needed to deal with environmental damage by aircraft. It will not be possible to reconcile the two goals of providing both adequate victim compensation and appropriate protection for the civil aviation sector when catastrophic losses occurs like 9/11. Recognizing the need to modernize existing legal frame work, the ICAO has discussed the modernization of the Rome Convention from early 2000.
As a result of modernization of the Rome Convention, the texts of two draft conventions were developed, namely: Convention on Compensation for Damage caused by Aircraft to Third Parties(commonly referred to as "the General Risks Convention"); and Convention on Compensation for Damage caused by Aircraft to Third Parties, in case of Unlawful Interference(commonly referred to as " the Unlawful Interference Compensation Convention")
In the General Risks Convention, with regard to the cause of attribution of liability, a mixed approach has been established, combining strict liability with fault-based liability, and limited liability with unlimited liability in a two tiered mechanism which uses the formula developed in the Montreal Convention of 1999. In the first tier, the operator is strictly liable for the damages claimed which do not exceed a certain amount established in SDR. Beyond a certain amount, its liability is based on presumed fault. There is no liability cap for the general risks. The General Risks Convention attempts to find a balance between the rights of the third party and the interests of aviation.
The General Risks Convention has broadened the scope by broadening the concept of aircraft "in flight" and has no provision for a cause for exoneration similar to the one established in the Rome Convention in respect of damage directly resulting from armed conflict or civil disturbance. It is for protecting the victim compensation. But The General Risks Convention do not deal with noise, sonic boom and environmental damage. The General Risks Convention deal with mental injury restrictively.
In the 33rd Session of the Legal Committee, the delegates agreed the most part of the General Risks Convention. It is expected for many countries to adopt and ratify the General Risks Convention.
Use of the 1999 Montreal Convention as a model seemed obvious in the beginning, but it became apparent that key aspect were not helpful in the case of unlawful interference. The case of unlawful interference is no similar to the case of carrier's liability in the 1999 Montreal Convention, but similar to the case of operator's liability in the nuclear compensation treaties or the international oil pollution compensation treaties. The IOPC Funds and their organic conventions provide the model for the SCM.
The Unlawful Interference Compensation Convention employs three layers to provide full compensation to victims. The first layer is provided by the aircraft operator's third- party war risks insurance, up to a fixed insurable level. The second layer consists of funds of the SCM, with a very high ceiling. The third, non-binding, unspecified layer is provided by the government or governments concerned in accordance with their laws and policies and perhaps other governments in a sprit of solidarity.
In the 33rd Session of Legal Committee, the views of the delegates were extremely divided on the SCM. The causes of a split in opinion were legislative methodology, the difference of countries' law mechanism and the different interests between developed countries and developing countries. But it will be solved by compromise, reservations and appropriate management of the SCM.
Most of the advanced countries in aviation have incorporated the International Conventions to their national air law and governed carrier's third party liability within their jurisdiction. But our countries has no local law to regulate directly this problem. 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.

목차 (Table of Contents)

• 제1장 서론····················································1
• 제1절 연구의 배경·····················································1
• 제2절 연구의 목적 및 범위··········································3
• Ⅰ. 연구의 목적····························································3
• Ⅱ. 연구의 범위····························································4
• 제2장 지상 제3자 손해를 규율하는 법적체제··············6
• 제1절 지상 제3자 손해 규율의 특성································6
• Ⅰ. 지상 제3자 손해 규율에 적용되는 법원(法源)···················6
• 1. 항공법의 분류······································································6
• 2. 국제항공법의 연원·······························································9
• Ⅱ. 항공기 사고의 특성·················································10
• 1. 전손성···············································································11
• 2. 순간성···············································································11
• 3. 손해의 거액성·····································································11
• 4. 지상전속성·········································································12
• 5. 국제성···············································································12
• 제2절 항공보험························································13
• Ⅰ. 항공보험 제도의 개관···············································13
• 1. 항공보험의 특성··································································13
• 2. 강제보험············································································15
• Ⅱ. 항공 보험 시장·······················································16
• Ⅲ. 항공보험계약·························································18
• 1. 계약체결절차······································································18
• 2. 진실공개의무······································································20
• 3. 보험약관············································································21
• Ⅳ. 항공보험종류·························································22
• 1. 제3자에 대한 책임보험························································23
• 2. 전쟁 및 납치보험································································23
• 3. 재보험···············································································25
• 제3절 로마협약체제···················································26
• Ⅰ. 로마협약의 연혁·····················································26
• 1. 1933년 로마협약································································27
• 2. 1952년 로마협약································································27
• 3. 1978년 개정로마협약··························································29
• Ⅱ. 로마협약의 주요 내용··············································31
• 1. 손해배상 청구권자 및 의무자···············································31
• 2. 손해배상책임원칙································································34
• 3. 관할권 및 제소기간·····························································43
• 4. 책임보장제도······································································51
• 제4절 로마협약 현대화 작업의 필요성····························52
• Ⅰ. 로마협약 현대화 필요성············································52
• Ⅱ. 로마협약 현대화 작업과정·········································54
• 제3장 로마협약체제의 현대화(Ⅰ) :
• 일반위험 배상책임체계의 재정비····················58
• 제1절 일반위험협약초안의 내용····································58
• Ⅰ. 일반위험협약초안의 주요 내용····································58
• Ⅱ. 일반위험협약초안의 기본원칙·····································61
• 1. 엄격책임원칙의 부분적 수정·················································62
• 2. 무한책임원칙······································································63
• 제2절 일반위험협약초안의 쟁점····································64
• Ⅰ. 적용범위······························································64
• Ⅱ. 배상책임 및 책임면제···············································65
• 1. 배상책임···········································································65
• 2. 책임면제···········································································68
• Ⅲ. 절차법적 쟁점························································69
• 1. 재판관할권·········································································69
• 2. 외국판결의 승인과 집행·······················································69
• 3. 제소기간···········································································71
• 제3절 소결····························································72
• 제4장 로마협약체제의 현대화(Ⅱ) :
• 불법방해배상책임체계의 도입·······················74
• 제1절 불법방해협약초안의 내용·····································74
• Ⅰ.불법방해협약초안의 주요 내용·····································74
• 1. 적용범위············································································74
• 2. 운항자책임··········································································75
• 3. 책임한도·············································································76
• 4. 2이상의 운항자가 관계된 사고··············································77
• 5. 보충적배상기구···································································77
• 6. 관할권 및 기타···································································81
• Ⅱ. 불법방해협약초안의 기본 원칙····································82
• 1. 엄격책임원칙······································································82
• 2. 유한책임원칙······································································82
• 제2절 불법방해협약초안의 쟁점····································83
• Ⅰ. 용어의 정의 적용 범위·············································83
• 1. 용어의 정의······································································83
• 2. 적용 범위··········································································86
• Ⅱ. 운항자의 책임························································88
• 1. 운항자 책임제한에 대한 예외 문제 ······································88
• 2. 항공사업자와 기타 서비스 제공자의 면책 문제·······················89
• Ⅲ. 책임보장제도 ························································90
• 1. SCM의 분담금 모금·····························································90
• 2. SCM의 구조 및 법인격························································91
• 제3절 불법방해협약초안의 발전 방향······························92
• Ⅰ. 운항자의 책임면책 가능성·········································92
• Ⅱ. 불법방해협약과 유사한 다른 협약································94
• 1. 원자력손해배상관련협약························································94
• 2. 국제유류오염관련협약··························································98
• 3. 불법방해협약의 발전방향···················································100
• Ⅲ. 불법방해협약초안에 대한 비판···································100
• 제5장 결론·················································104
• 참고문헌····················································107