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함세훈 ( Se Hoon Ham ),황호원 ( Ho Woon Whang ) 한국항공운항학회 2011 한국항공운항학회지 Vol.19 No.2
The article specified in aviation legislation, ``The captain has the final authority and res ponsibility in flight safety`` could be one reason running counter to applying “Vertrauensg rundsatz”. In practice, however, captains do not have professional skills in every task an d they should distribute duties and responsibilities to flight attendents and other staffs to operate the flight as safely and efficiently as possible. Therefore, in aviation, fair criterion, namely, "Vertrauensgrundsatz" is necessary to bala nce between efficiency and legal interest for participants. In addition, when it comes to mutual trust of duty which was the starting point of this study, the standard in mutual advice or interference must be based on the duty specified in air law and flight regulations. Also, pervasive trust will not only be attributed to joint r esponsibility but an act that cannot be trusted.
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함세훈 ( Se Hoon Ham ) 한국항공우주법학회 2010 한국항공우주정책·법학회지 Vol.25 No.2
자동차, 철도, 광산업이 시작되면서 등장한 새로운 위험에 대하여 사회적 유용성을 이유로 활성화된 세계를 유지하고자 출발한 허용된 법리에 대하여 우리나라의 학계에서는 다수가 인정하고 있는 분위기인데 반하여 판례에서는 아직까지 기존의 과실론 체계로 해석하고 있다. 그러나 첨단 과학기술영역의 하나인 항공 운항에 있어서 사건이나 사고의 원인이 되는 청천난류(CAT)나 요란(turbulence)을 갖고 있는 뇌우는 환자의 불안전한 예후처럼 실시간 완벽한 탐지가 곤란하고 위험 발현 여부와 크기를 확정할 수 없으며 수시로 변화하는 이상 기상 현상이다. 이러한 이유가 있음에도 청천난류(CAT)가 존재할 수 있는 jet 기류의 이용은 시간과 연료를 대폭 절감하고 치명적 위험으로 발현되지 않은 뇌우가 있는 공항으로의 접근 착륙은 승객들의 정시 출·도착을 보장하기에 사회적 유용성이 높은 운항 형태라고 할수 있다. 위험이 예견되고 회피할 수 있는 방법이 있으나 사회적 유용성을 이유로 개연성이 낮은 청천난류(CAT)나 요란(turbulence) 위험 지역을 운항하다가 발생한 사건이나 사고에 대하여는 허용된 위험의 법리를 적용하여 조종사들의 일정한 주의의무에 대한 완화가 필요하다. With starting the industry of automobiles, railroads and mining, the legal principle of "erlaubtes Risiko" that began as a means of maintaining the revitalized world for the cause of social utility has interpreted as a system of negligence theory in the precedent while it has gained academic recognition. Yet in aircraft operation, which is one area of high technology, CAT which can be the cause of some accidents or events or thunderstorm with turbulence is an abnormal meteorological phenomenon with frequent change that cannot be monitored perfectly just as some patient with unstable condition and that cannot be ascertained about not only the possibility of its happening but also the degree of how big the accident is. Yet the use of jet current which has the possibility of CAT can be an act of high social utility where we not only drastically cut down on time fuel also guarantee the arrival and departure on schedule when landing in airports that have thunderstorm which does not appear as fatal risk. Although we could take some measures where we can predict and avoid the potential risk, easing the regular duty of care is necessary by applying the legal principles of permitted risk concerning the incidents and accidents caused by operating in areas with the risk of turbulence or CAT with the low probability by the reason of social utility.
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함세훈 ( Se Hoon Ham ),황호원 ( Ho Woon Whang ) 한국항공운항학회 2010 한국항공운항학회지 Vol.18 No.3
The prohibition of careless or reckless flight is the regulation specified not only in the national air law but ICAO ANNEX and FAR. This article(item) has not been categorized properly unlike other items and the question such as why this is described as a fundamental and essential act can be answered only by the party subjected to administrative measures in case of Korea and this kind of violation is so rare that it is not easy to understand the legal meaning and the function of the term, The prohibition of careless or reckless flight In case of U.S where aviation cases are common, the distinction between the term careless or reckless operation depends on whether to recognize the given situation. Some incidents happened by failing to aware NOTAM, violating ATC, or T/W landing where a pilot did not recognize the violation itself are considered to be Careless flight. Others such as low altitude high speed flight, approximate flight, Rejecting ATC instruction where a pilot intends to or is remiss in safety are regarded as Reckless flight. For pilots who are required to take the highest level of care from preparing for flight to stopping engines or completely disembarking passengers from a plane, the clear understanding of the most basic concept of careless or reckless flight should be emphasized for the safe flight and it is the time for the authorities to set a standard for proper measures by definite legal interpretations.
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항공 사고에서의 과실 이론 -일본 항공 사고 판례를 중심으로-
황호원,함세훈 한국항공우주정책·법학회 2008 한국항공우주정책·법학회지 Vol.23 No.2
The development of the aviation technology is beyond the people`s imagination. For example, with some exaggeration, If the autopilot engage upon take off, You will realize that you are on the centerline of the foggy JFK runway 13R after 15 hours with only once or twice of intervention. But the more aviation technology develops, the more responsible the pilot will be who has the final authority of the aviation safety. In the JAL 706 accident caused by unidentified reason, the pilot increased pitch abruptly and overrode the control from the autopilot. The result of this process made the death of a flight attendant and some injuries of a few passengers. The district court found the pilot not guilty at the first trial on the ground that the control override was not connected to the possibility of foresight and avoidance of the human death. The pilot was proved to be innocent through the analysis of the DFDR and ADAS that the override did not precede the unidentified pitch up motion. The judicial precedent related to aviation accidents in Korea requires pilots` absolute and extended care compared to the ordinarily prudent or reasonably careful behaviors in the vehicle and medical accidents Although there is some controversy about the standard care, the care required in the actual operation of high tech aircraft by a pilot should include objective and standard care and be judged by analysis of the scientific data. Although the pilot maintained the unusual hi speed that doesn`t have safety margin and descended under turbulence in case of the JAL 706 accident, the court negatived its relation to the cause of pitch up. Also, the override of the control after initial pitch up might have caused the possibility of the death and injury, but the court denied it. Because of this complex cause of the aviation accidents, it is important for a court to figure out the core reason of the event and casual relationship with the pilot Now, It is required that the judgement of negligence in the aviation accidents should include an objective care with scientific data from simulated circumstances(or a simulator) as the Japanese court not from the theory of vehicle`s negligence.
ScienceON
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