[1] The case holding that in case where Gap company Gap company's aircraft operating the Incheon-Franc routes landed at the Incheon International Airport and caused an accident where transpicing from the breakwater part of the runway was damaged, and the Minister of Land, Infrastructure and Transport ordered Gap company to suspend the operation of the above flight route for 45 days pursuant to Article 115-3 (1) of the former Aviation Act, the case holding that Gap company failed to pay due attention to the pilot's lighting related to the above flight and did not conduct sufficient education and training to prevent aircraft accidents, and the violation of the duty of due care to appoint and supervise the pilots of Gap company Gap company's aircraft was the main cause of the accident, and there was no violation of the duty of care in the appointment and supervision of Gap company's pilots, and thus, the ground for disposition was proved and the discretionary power was abused and abused

[2] Admissibility of evidence of documents in an administrative litigation and whether the Annex to the Convention on International Civil Aviation is legally effective in Korea (negative)

[1] Article 115-3(1) of the former Aviation Act (repealed by Article 2 of the Addenda to the Aviation Safety Act, Act No. 1416, Mar. 29, 2016) (see current Article 91(1) of the Aviation Safety Act), Article 281-3(1) [Attachment 56] [Attachment 8 of the former Enforcement Rule of the Aviation Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 146, Nov. 28, 2014) (see current Article 264(1) [Attachment 34] 48 of the Enforcement Rule of the Aviation Safety Act / [2] Article 8(2) of the Administrative Litigation Act, Article 202 of the Civil Procedure Act, Article 54 of the Convention on International Civil Aviation, and Annex 13 of the Convention on International Civil Aviation Accident Investigation (Anex 13 Air Scidid and Inc.)

[2] Supreme Court Decision 2001Du6319 Delivered on November 27, 2001, Supreme Court Decision 2002Do850 Delivered on June 27, 2003

Asian Air Co., Ltd. (Attorneys Lee Jae-de et al., Counsel for the plaintiff-appellant)

The Minister of Land, Infrastructure and Transport (Law Firm LLC et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2016Nu39407 decided May 17, 2017

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

The lower court determined as follows: (a) pursuant to the latter part of Article 115-3(1)45 of the former Aviation Act (amended by Act No. 1416, Mar. 29, 2016; hereinafter the same) (hereinafter “instant provision”), the degree of “reasonable duty of care” imposed on an air transport business entity in relation to the appointment and supervision of aviation personnel refers to “the duty of care to the extent that it could avoid it by predicting the risk of an accident ordinarily occurred by air employees”; and (b) rejected the Plaintiff’s assertion that the breach of the duty of care refers only to a breach of the duty of care to the extent that it constitutes intentional or gross negligence.

In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on “the duty of care to appoint and supervise the aircrew of an air transportation business entity under the former

2. As to the grounds of appeal Nos. 2 and 3

After compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning, and rejected the Plaintiff’s assertion that the Plaintiff neglected to pay due attention to the pilot convenience related to the instant flight, did not provide sufficient education and training to its employees to prevent the aircraft accident, and that the Plaintiff’s above violation of the duty of care to appoint and supervise the Plaintiff’s pilots was the main cause of the instant accident, and that the ground for disposition prescribed in the instant provision was not proven.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine regarding the burden of proof, etc. of the reason for disposition, or by failing to exhaust all necessary deliberations as to whether the Plaintiff violated the duty of care in appointment

3. As to the fourth ground for appeal

The court below determined, based on its reasoning, that the suspension of operation of an aircraft under Article 115-3 (1) of the former Aviation Act includes "the suspension of operation of an aircraft operating a specific route" as the suspension of operation, and that the suspension of operation of this case constitutes a disposition that the Plaintiff violated his duty of care in the appointment and supervision of an aircrew member, and that the suspension of operation of this case is mitigated by the suspension of operation under subparagraph 8 of attached Table 56 of the former Enforcement Rule of the Aviation Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 146, Nov. 28, 2014) (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 146, Nov. 28, 2014). It is sufficient to recognize the validity of the suspension of operation of this case as the suspension of operation under Article 115-3 (1) of the former Aviation Act as well as the public interest to be achieved by the suspension of operation of this case cannot be less than the disadvantage suffered by the Plaintiff.

In light of the relevant legal principles and records, the judgment below is just and acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on deviation and abuse of discretionary power, or by exceeding the bounds of the principle of free evaluation of evidence

4. As to the fifth ground for appeal

A. In an administrative litigation to which the provisions of the Civil Procedure Act apply mutatis mutandis, as a matter of principle, there is no limitation on the admissibility of evidence concerning a tangible object, and thus, in the case of a document, there is a qualification to be used as evidence, and if the document is recognized as a formal evidence, the admissibility of evidence is recognized, but only the judgment of the substantive evidence is left to the judge's free evaluation (see Supreme Court Decision 2001Du6319, Nov. 27, 2001). Even if Korea joined the Convention on International Civil Aviation and has the same effect as the domestic law, the Annex to the said Convention adopts and amends international standards and recommendation practices on matters deemed to have the same effect as the domestic law and notifies it to each Contracting State, and it does not have the legal effect that the Contracting State compels its members to comply with the contents of the Annex, unlike the provisions of the said Convention (see Supreme Court Decision 2002Do850, Jun. 27, 2003).

B. Based on its stated reasoning, the court below rejected the Plaintiff’s assertion that a factual report prepared by the Ministry of Land, Infrastructure and Transport based on the findings conducted by the Ministry of Land, Infrastructure and Transport in relation to the instant aircraft accident should not be used as evidence in the instant lawsuit, and that it should not be used as evidence in accordance with the Annex 13 adopted by the International Civil Aviation Organization by the International Civil Aviation Organization, unless part of the investigation report by the National Traffic Safety Commission (NTSB) is included

C. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on admissibility of documents in the administrative litigation and the validity of the domestic law in Annex 13

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)