「항공안전법」상 항공기 등록제도 개선방안 연구 = Study on the aircraft registration under「Aviation Safety Act」

다국어 초록 (Multilingual Abstract)

Over the past fifty years the aviation industry of South Korea has grown rapidly to reach the world’s No.6 position, and the country’s air transport business has developed equally rapidly. In March 2019, three more businesses joined the country’s air transport industry, in which nine airlines were already operating, in step with the country’s rising economic growth. International aviation service agreements stipulate that an airliner designated by a country shall follow ‘doctrine of substantial ownership and effective control’ by its people. Most countries, including Korea, reflect this doctrine in their domestic laws. However, non-profit private aircraft are not subject to this agreement.
Matters pertaining to aircraft and air transport business are stipulated in the country’s Aviation Safety Act and its Aviation Business Act. (The two Acts used to be incorporated into one under the Aviation Act.) A party that intends to own an aircraft should register it under the Aviation Safety Act. A business that intends to engage in air transport business should obtain the mandatory license under the Aviation Business Act. The Aviation Safety Act stipulates that a corporation at least half of whose shares or equity stakes are owned by a foreign national, foreign government or foreign corporation, or whose business is substantially controlled by such a party, shall not be allowed to be registered in the country. It can be said that this clause is intended to meet the doctrine concerning a flag carrier airline operating on international air routes as mentioned earlier.
For a business, the securing of investment is an important means of obtaining financial resources for its overall operation, including starting a new business. The securing of capital from a source outside the country is a very important engine that can pull a business forward, especially when the domestic economy is in a tough situation. As such, the restriction on the registration of an airliner where foreigners account for a certain portion of equity shares is a major inhibitive factor for businesses.
As noted in the foregoing, the restriction on foreigners’ equity shares and Doctrine of Substantial Ownership in the registration of aircraft in a given country started with aviation service agreements designed to establish the concept of flag carriers. The said restriction is in place for just such a purpose. Therefore, it is necessary to review whether it corresponds to the original purpose to apply the restriction related to foreigners’ equity shares even to aircraft owned by a non-airliner for non-profit purposes. The restriction on the registration of aircraft in such a situation may be viewed as a measure aimed at restricting the ownership of aircraft essential for the normal operation of a domestic business, and such a restriction may result in limiting foreign investment, which is not stipulated even in the Commercial Act.
The purpose of this study is to propose that the current system of aircraft registration be operated in a way that corresponds to the original purpose of the Aviation Safety Act based on an examination of the status of domestic businesses’ ownership of aircraft, the status of foreigners’ equity shares in domestic listed companies, and the results of a comparison and analysis of major countries’ systems of aircraft registration. A review of a means of placing a reasonable restriction on foreigners’ equity shares would go a long way towards settling the issues raised about businesses’ ownership of aircraft, enhance the efficacy of the system for having businesses’ ownership of aircraft registered, and enhance foreigners’ equity shares in domestic businesses.

참고문헌 (Reference)

• 1 정경영, "회사법학" 2022
• 2 류광해, "행정상 ‘등록’의 유형 및 법적 성격" 법학연구소 29 (29): 167-209, 2018
• 3 박균성, "행정법론(상)" 2022
• 4 서명선 ; 조주은, "항공자유화정책상 상용고객우대제도의 제휴 성과와 국제경쟁에 관한 연구" 한국항공우주정책⋅법학회 25 (25): 139-162, 2010
• 5 이창재, "항공운송사업자의 국적 제한에 관한 고찰" 한국항공우주정책⋅법학회 33 (33): 147-174, 2018
• 6 류광해, "자동차, 건설기계, 항공기 등록의 법적 성격" 법학연구소 17 (17): 655-675, 2016
• 7 嚴龍國, "미국-EU 항공자유화협정과 항공사 실질적 소유와 실효적 지배에 관한 연구" 한국외국어대학교 정치행정언론대학원 2014
• 8 조영주, "국제 항공 협정상 지정항공사 조항에 관한 연구" 연세대학교 법학전문대학원 2018
• 9 홍순길, "공(空)의 자유와 AIR CABOTAGE - 법적 개념과 그 확대적용의 제문제 -" 한국항공우주정책·법학회 4 : 1992
• 10 崔斗煥, "航空運送事業의 免許體系 및 關聯制度 改善方案에 관한 硏究" 韓國航空大學校 大學院 2020
• 11 최완식, "國際航空法에서 본 民間航空機와 航空企業의 國籍制度" 29 (29): 1984
• 12 Destiny Scott, "United States Ownership, Control and Charter Restrictions: Maritime"
• 13 Peter Francis Humcle, "The Withering of Foreign Ownership Restrictions and the Rise of Competition in the North American Airline Industry, Institute of Air and Space Law" McGill University 73-, 1996
• 14 Kirsten Bohmann, "The Ownership and Control Requirement in U.S. and European Union Air Law and U.S. Maritime Law-Policy; Consideration; Comparison" 689-, 2001
• 15 Major Stephen M. Shrewsbury, "September 11th and the Single European Sky: Developing Concepts of Airspace Sovereignty" 68 : 115-, 2003
• 16 IATA, Government and Industry Affiars Department, "Report of the Ownership & Control Think Tank World Aviation Regulatory Monitor (IATA Doc. prepared by H.P. van Fenema)" 2000
• 17 C. Rouseau, "Principe de droit international Public" Recueil des Cours á la Haye 1958
• 18 Joshph W. Hardy, "Overcoming U.S. Citizenship Hurdles for Aircraft Financiers" 72 : 369-, 2007
• 19 R. Patanaphan, "Navigating the Complex Skies: A Caveat on Liberalizing Foreign Ownership Restrictions in U.S. Airlines" 72 (72): 2011
• 20 John C. Cooper, "National Status of Aircraft" 17 : 292-, 1950
• 21 "H.R. Rep. No. 1653, 68th Cong"
• 22 "EU Council Regulation 2407/92 on Licensing of Air Carriers, 1992 Official Journal L240/1"
• 23 "EU Commission Decision Np. 95/404/EC on a Procedure Relating to the Application of the Council Regulation 2407/92 (Swisssair/Sabena), 1995 Official Journal L239/19"
• 24 ICAO, "Definition of scheduled international air service"
• 25 "Convention on International Civil Aviation"
• 26 "Coastwise Trade Laws vs. Aviation Laws, Journal of Transportation Law, Logistics & Policy. 2nd Quarter 2014, Vol. 81 Issue 2"
• 27 "Civil Aeronautics Act of 1938, Pub. L. No. 75-706, 52 Stat. 973, § 1(13)(c)"
• 28 ICAO, "Annual Report 2018(Presentation of 2018 Air Transport Statistics Results, Table 5 “Revenue tonne-Kilometres and passenger-kilometres on scheduled services”" 2018
• 29 "Air Commerce Act of 1926, ch. 344 § 9(a)(3), 44 Stat. 568"
• 30 James D. Struble, "AIRCRAFT TRANSACTION BASICS: A Business Development Opportunity"
• 31 "48th SMU Air Law Symposium"
• 32 "104th Congress 1st Sesson. H.R. 951"