中国通用航空法的不足与完善(英文)

日期:2015-01-05 10:43 作者:中国民用航空网
Deficiencies of China’s General Aviation Law and its Improvement

  Contents

  Ⅰ. Introduction

  Ⅱ. Definition of general aviation

  Ⅲ. Overview of global and China’s general aviation development

  Ⅳ. China’s legal framework on general aviation

  Ⅴ. Deficiencies of the prevailing legal framework

  Ⅵ. Necessity of an improved legal framework for general aviation

  Ⅶ. Suggestions for improvement and conclusion

  Ⅰ. Introduction

  General aviation is an integral component of civil aviation and has played a keyrole in contributing to a nation’s economic growth. In particular, general aviationprovides flexible and accessible transport services to the public in contingentcircumstances and assists to fulfill government duties in search and rescue, surveillance,and policing. Using smaller aircraft, general aviation is usually regulated by individualsovereign state government, though the principles of Chicago Convention must behonored, the Standards and Recommended Practices of International Civil AviationOrganization (ICAO) must be adhered to as the minimum standards to be implementedin ICAO member states.As a contracting state of ICAO, China has developed a comprehensive legalframework governing its civil aviation activities, both operated domestically andinternationally. However, laws pertaining to general aviation operation are notcoherent, consistent, and systematic. This paper attempts to examine China’sprevailing collection of regulations on general aviation with an aim to identify thedeficiencies and suggest improvements. The paper is organized as follows. After theintroduction, definition of general aviation is discussed followed by an overview ofgeneral aviation development in China with some comparisons made with the UnitedStates (US), European Union (EU) and Australia. A close examination of the existinglegal framework on civil aviation, especially on general aviation, is then conductedwhere deficiencies are identified and analyzed. The paper concludes with explicitsuggestions to improving China’s legal framework governing general aviationactivities.

  Ⅱ. Definition of general aviation

  What is general aviation? Although the term is widely used, there is hardly auniversally-accepted definition. When it is used in different countries, it carriesdifferent meanings. Many consider it to mean “all aviation activities except thatperformed by commercial airlines and the armed services. Others find it helpful torecognize that all operations below a particular weight/mass threshold (5700kgs for aero planes) share much in common, irrespective of the purpose of flight.

  1. ICAO’s definition

  Even ICAO uses two definitions for different purposes in different contexts. InAnnex 6 Part II, International Aero plane Operations, General Aviation, to ChicagoConvention, general aviation operation is defined as an aircraft operation other thana commercial air transport operation or an aerial work operation2). While in orderto satisfy its statistical purposes, ICAO defines general aviation as all civil aviationoperations other than scheduled air services and non-scheduled air transport operationsfor remuneration or hire, whose activities are classified into instructional flying,business flying, pleasure flying, aerial work and other flying. It argues that the adoptionof a different definition of general aviation in different contexts is rational andacceptable because both definitions serve different purposes with each beingadequately and accurately articulated and stipulated for the benefits of satisfying aparticular requirement.

  2. US, EU and Australia’s attempts

  As a catch-all phrase with such a generic definition by ICAO, the term leavesmore room for individual member states to leverage and interpret in its own politicaland economic context so as to meet its regulatory and operational requirements.

  Overall, general aviation is commonly defined along two primary lines, namelyactivity and aircraft, with most countries approaching the definition along the lineof activity. For example, the US refers general aviation as all aspects of the aviationindustry except scheduled passenger and cargo airline operations and military flying.The Federal Aviation Administration (FAA) in its annual General Aviation and Part135 Survey categorizes general aviation activities by use, including corporate, business, instructional and personal flying, as well as air medical, aerial observation andapplication, sightseeing, and recreational flying.

  The EU adopts a similar approach by grouping certain types of aviation activitiesunder the category of general aviation. The European Commission stated that generalaviation involved a wide spectrum of aircraft ranging from gliders to complex businessjets and provision of high value services as aerial works or emergency and businessdoor-to-door transportation6). Along the line, when the Civil Aviation Authority ofthe United Kingdom (UK CAA) reviewed its general aviation regulation in 2006,it adopted a simple and identical definition of general aviation by referring it to anaircraft operation other than a commercial air transport operation7).In Australia, general aviation is not legally defined in its legislation. The industryholds that it is impossible, nor necessary, to agree to a single definition as the industrywould demarcate along different lines for different purposes8). Nevertheless, theAustralian Civil Aviation Safety Authority (CASA) refers general aviation to allnon-scheduled flying activity in aircraft allocated a VH-registration9), but excludingVH-registered sail planes (powered or non-powered). Also excluded are ultra lightaircraft, non VH-registered military aircraft, hand gliders, balloons and gyroplanes.

  General aviation business include charter operators, aero medical operators, agriculturalaviation businesses, aviation-based fire-fighting services, training and aerial work suchas aerial photography and surveying. It also includes private, business, recreational and sports aviation activity and supporting businesses such as maintenance providers11). In recognizing the significant changes and challenges faced by the general aviationsector, CASA established a General Aviation Task Force (GATF), which will lookat various aspects of existing and proposed legislation and the activities regulatedby the legislation. It will canvass the views of industry representatives and participantswith the intention of gathering fresh perspectives from those most directly involvedin the regulated activities under review.

  3. China’s definition

  Not surprisingly, the Chinese definition of general aviation has its own bearingswhich is different from any of the above. The Civil Aviation Act of China 1995 defines“general aviation as any civil aviation operation conducted by an aeroplane other thanpublic air transport operation. Such non-public air transport operation embracesspecialized services such as industrial, agricultural, forestry, fishing and constructionaerial work as well as flight operation for the purpose of medical treatment, searchand rescue, meteorological surveillance, oceanic observation, scientific research andexperiment, education and training, cultural and recreational activities”.

  4. Summary

  To summarize, despite the variations of the definition of general aviation, it isuniversally accepted that the essence of general aviation is the non-commercial aircraftoperation encompassing a wide range of activities from recreational flying withnon-powered light aircraft to very specialized aerial works. It is one of the mostdynamic and diverse sectors undergoing rapid changes bringing forward magnificentand unprecedented challenges to the industry and society. Yet it constitutes such animportant part of the global aeronautical industry and contributed significantly to theeconomic growth and sustainable development.

  Ⅲ. Overview of global and China’sgeneral aviation development

  Over the century, general aviation, like commercial aviation, has experiencedphenomenal growth worldwide, with its aggregate levels of operation and growthbeing affected and driven by different factors including economic development,volatility of fuel prices, tax incentives for aircraft ownership, the costs of owningand operating personal aircraft, the total private pilot and general aircraft population,and many more. According to ICAO, around 338,820 general aviation aircraft wereregistered by 183 contracting Member State in 2005, nearly 7 times more thancommercial aircraft. Though complete data describing general aviation activitiesworldwide is not available, the following provides a valuable glimpse in some selectivecountries including the US, EU and China.

  1. General aviation market in the US and EU

  Overall, the US general aviation accounted for approximately 77 percent of allaircraft operations, while commercial aviation only contributed a much smallerpercentage. Of its 19,100 airports, only 651 are for commercial aviation operations.

  With more than 300,000 general aviation aircraft and nearly 600,000 pilots flying23.7 million flight hours, general aviation contributed more than 0.3 percent to thecountry’s GDP. Between 1960s and 2000s, general aviation activities on averagetrended upwards along with the growth in GDP, recording more than $40 millionof towered operation in 2000, despite a seemingly persistent decline of aggregatelevel of activities since 2001, with around $25 million towered operations beingregistered.In Europe, general aviation represented around 50,000 motor-powered aircraft ascompared to about 5,000 aircraft in its commercial airline fleet in 200717). In addition,nearly 200,000 micro-light and non motor-powered aircraft were used for sport andrecreation. Since 2003 the number of aircraft movements in general aviation registeredby Euro control has been growing almost twice as quickly as the rest of the traffic(22 percent more flights in 2006 than in 2003, compared to a 14 per cent increasefor the rest of the traffic). In 2005, about 100,000 airport/aerodrome pairs were servedby general and business aviation traffic as opposed to about 30,000 linked by scheduledairline connections. In 2006, almost 9 percent of all aircraft movements in Europeaccounted for general aviation.

  2. General aviation market in Australia

  Aviation sector is a vital part of Australia’s economy, which employs in excessof 100,000 people and contributes an estimated $17.3 billion to its economy19).

  General aviation is particularly important to Australia both economically andculturally, given its vast geographical landscape with majority of population residingalong the coastlines. Overall, general aviation has experienced rapid growth andprosperity over the century but some stagnancy over the last decade. In 2010, Australiaregistered 12,564 general aviation aircraft compared to 307 commercial aircraft usedfor regular public transport. The total hours flown by Australia-registered aircraft inthe general aviation and regional airline sector was recorded 2.1 million, an increaseof 3.2 per cent compared with 2 million in 2009. However, this was only a moderateincrease than the year 2000, which registered 2.05 million. The industry comprisesa diversity of businesses and individuals in terms of activity, location and size ofbusiness. In 2005-06, the sector employed 3,800 people in 1,200 enterprises. Industryturnover was $923.8 million, representing a 15.3 per cent increase over the previousthree years, with export earnings of $65.2 million21).

  3. China’s development

  China has experience exponential economic growth over the last three decades,which is also a driving force for its rapid commercial air transport development, withan average growth rate of more than 17 percent per annum. However, its generalaviation sector has remained disproportionally underdeveloped compared with itscommercial aviation. Figures from Civil Aviation Administration of China (CAAC)showed that by April 2011, China only registered 1,100 general aviation aircraft and150 private aircraft, completing 140,000 hours of flight, compared with its more than4,000 commercial airliners in its fleet. There were 140 general aviation enterprises,most of which were small and medium sized businesses, being inadequately equippedwith modern technology or aircraft. About 70 airports were classified as generalaviation airports and 216 were temporary aerodromes for general aviation activities,with vast majority being located in Northeast, Northern and Eastern China.Of the more than 30,000 licensed pilots by CAAC, only 20 percent worked forgeneral aviation sector, while 80 per cent were employed by commercial airlines.Among those working for general aviation sector, about half were flight instructors,600 air taxi and charter pilots, 600 aerial work pilots, and about 1,000 were privatepilots.

  4. Demand for general aviation in China

  As the world’s second biggest economy, China has no doubt the greatest potentialfor general aviation growth. “Opinions on Deepening the Reform of Low-AltitudeAirspace”jointly issued by the State Council and China Central Military Committeein October 2010 stimulated the zest for general aviation operation across the country.Setting a timeline to relax its low-altitude air space by early 2013, the centralgovernment recognized general aviation as a strategic industry which was set to boom.

  To take advantages of the policy in favour of the sector, more than 20 provinceshave established a specialized aviation industry zone, in an attempt to stimulate therobust development of general aviation. The Xi’an’s National Aviation Economic Zonealone has attracted more than 500 aviation-related businesses, with core business beingaviation manufacturing24). The Zhuhai Aviation Industry Zone in Southern China’sPearl River Region has secured General Aviation Branch of China Aviation IndustryCorporation to base in the zone, enabling activities such as research and development, assembling and test flying, sales and marketing, and maintenance and operation tobe conducted under one roof.

  Research conducted by Sino-US Aviation Cooperation Programme found that China’sgeneral aviation market would welcome its peak period of growth as of 2015, providedthat policies are formulated and infrastructure are improved to encourage and facilitateits development. The fleet of general aviation aircraft will increase to 2000, halfof which would be flight training aircraft. The sector will contribute up to 24 billionYuan ($4 billion) to the country’s economy, generating up to 240,000 jobs.The demand for private jets is also accelerating. More than 2 million millionaires and65,000 billionaires rapidly emerged since China’s economic reform are considered themost prospective private aircraft and business jets buyers. Bombardier (2012) predictedthat China would receive 600 business jets over the next 5 years, bringing the total numberto 710 in 201927). Booz Allan and Company in 2009 projected that China would needmore than 2,500 general aviation aircraft by 2015 and 6,000 by 2020.Yet the rosy future also underpins the urgent need to address the unprecedentedchallenges to the industry. One of the biggest challenges is its distorted and obsoletelegal framework regulating the general aviation activities. The following is a detailedanalysis of the country’s current legal framework where its deficiencies are examinedand improvement are suggested.

  Ⅳ. China’s legal framework on generalaviation

  Over the years, China has formulated more than 100 acts, directives, regulations,rules, guidelines, procedures, and orders governing the operation of air transport. Someof them are developed pursuant to the provisions of international conventions, whichChina has ratified, while others are promulgated as a domestic initiative in orderto ensure a progressive and orderly development of the industry.

  1. Chicago Convention and its annexes as a fundamental basis of China’s aviation legal framework

  One of the key features of air transport is that it is an international operation whichrequires unified, consistent, systematic and standardized regulations and technicalstandards and practices to follow. Chicago Convention, together with its 18 Annexes,is the most important international convention regulating international air transportand has been recognized by 191 countries by 2012, including China.

  Although Chicago Convention itself does not address the operation of generalaviation, Article 37 empowers ICAO to “adopt and amend from time to time, asmay be necessary, international standards and recommended practices and proceduresdealing with various aspects of air transport operation such as communication systemsand air navigation aids, licensing of operation and mechanical personnel, aircraft indistress and investigation of accidents, and such matters concerned with the safety,regularity, and efficiency of air navigation as may from time to time appearappropriate, with the sole purpose of ensuring that each contracting state undertakesto collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organizations in relation to aircraft, personnel, airways andauxiliary services in which such uniformity facilitate and improve air navigation”

  Pursuant to the above provision, “Standards and Recommended Practices for theOperation of Aircraft―International General Aviation”was first adopted by theCouncil on 2 December 1968 and designated as Annex 6, Part II, to the Convention.

  They became effective on 2 April 1969 and applicable on 18 September 1969.To date, around 31 amendments and revisions have been made with the latest beingdone in November 2012 concerning carriage requirements for flight recorders. Thesemodifications are essential and necessary to ensure that the Annex reflects thesignificant dynamics and magnificent changes in general aviation sector over the last5 decades, as a consequence of globalization, economic growth, and technologyadvancement.The first major amendment was made in 1986 to refine the definition of generalaviation. A review of the provisions of Annex 6 by ICAO found that aerial work shouldbe excluded from the definition of general aviation to recognize its distinct aspect ofcivil aviation, thus being excluded from the applicability of Annex 6, Part II.This was understandable in that in 1965 when Annex 6 was developed, ICAOwas not aware of any degree of international aerial work operation which wouldnecessitate the development of international standards and recommended practices.

  The modified definition of general aviation and aerial work and the revisedapplicability chapter was submitted to Member States and approved by the Councilin March 1990.A second major amendment to the Annex was made in 2005 and 2006 to reflectthe new general aviation dynamics, including the increasing use of large, technicallyadvanced turbine-engined aeroplanes in international general aviation operations.Endorsing the philosophy established during the initial development of the Annex,ICAO agreed that the provisions of Annex 6, Part II, should remain applicable toall general aviation operations, but updated to reflect current technologies andoperational procedures and the use of safety management systems where appropriate. The Standards and Recommended Practices represent minimum provisions andcover the operation of all aeroplanes in international civil aviation, except in aerialwork operation.Implementing its international obligations in good faith has been a fundamentalprinciple of Chinese law33). China’s “Act of Procedures of Concluding InternationalTreaties 1990” requires that international treaties to which China is a party are bindingin its domestic law, except those provisions to which China has made reservations.

  China ratified Chicago Convention in 1947. It has also recognized their subsequentrevisions and amendments afterwards as a fulfillment of its international obligations.Article 184 of China’s Civil Aviation Act 1995 provides that “where the provisionsof an international treaty concluded or acceded to by the People’s Republic of Chinaare different from those of this Act, the provisions of that international treaty shallapply, except provisions for which reservation has been made.”

  2. Domestic legislation governing general aviation

  China’s domestic legislation governing civil aviation operation is formulated at threelevels. At the top of the hierarchy are acts promulgated by National People’s Congress,for example, the Civil Aviation Act of People’s Republic of China 1995. Those inthe middle are the directives, orders, and regulations issued by State Council.“Directive on General Aviation Flight Management 2003” (Decree No. 371 jointlyissued by the State Council and China Central Military Committee) is a manifest.Those at the bottom level are the regulations, procedures, and notices issued by CAACand its functional departments within CAAC. The “General Operation and FlightRegulation” (Civil Aviation Regulation, CCAR-91, CAAC Order No 120) is a goodexample at this level. The hierarchical collections of legislation have served as afundamental legal framework governing general aviation operation in China. Thefollowing provides a comprehensive overview.

  2.1 Legislation

  The Civil Aviation Act of People’s Republic of China was adopted on 30 October1995 and became effective on 1 March 1996. Being the first legislature regulatingcivil aviation activities in China, it was heralded nationwide as the most comprehensivelaw covering such areas as sovereignty, aircraft registration, personnel licensing, safetyand security, insurance, general aviation, consumer protection, and internationalobligations.Of its 214 articles in 16 chapters, only 6 articles from Articles 145 to 150 in Chapter10 are devoted to general aviation, which provide the definition of general aviation,conditions for enterprises to engage in general aviation activities and requirementsto safeguard flight safety, protection of environment and ecological balance, andmaintenance of valid insurance policies. The Act, without doubt, has played a criticalrole in regulating the industry and facilitating its healthy and progressive growth. However, due to globalization, the rapid economic growth and dynamics of theindustry, the Act has failed to address and tackle emerging issues.Over the last 17 years, voices calling for revision and modification of the Acthave been increasingly getting louder and louder, with the very prominent one beingheard in 2003, when China was accepted in the World Trade Organization (WTO).The commitment requires the country to align its domestic legislation in line withinternational norms so as to safeguard its commitment to implementing its obligations.Other crisis that happened in the following years, including the compensationsdemanded by the families and relatives of air crash victims, the disputes betweenChina Eastern Airlines and its pilots who wanted to change jobs, have made theamendment an urgent need.Encouragingly, in November 2012, the Financial Committee of National people’sCongress confirmed that modification of the Civil Aviation Act is now underway,with CAAC reinforcing that significant resources have been invested in the Endeavour.

  2.2 Directives, Orders and Regulations

  Two directives have been issued by the State Council concerning general aviationoperation. The first was issued on 8 January 1986 “The State Council’s ProvisionalDirective concerning General Aviation Management” (Guofa No 2, 1986), well beforethe promulgation of China’s Civil Aviation Act 1995.

  The Directive for the first time replaced the term “professional aviation” with“general aviation”, thus bringing the terminology in line with international practice.It also specified that CAAC would be the authority empowered to administer generalaviation activities. Requirements and procedures are stipulated for businesses to satisfyand follow to be eligible for engaging in general aviation operation. To date, theDirective still applies to general aviation organizations with an intention to applyfor a license to expand its general aviation activities into international arenas.The second one was “Directive on General Aviation Flight Management” (DecreeNo. 371 by State Council and China’s Central Military Committee), jointly issuedby the State Council and China Central Military Committee on 19 January 2003,which entered into effect on 1 May 2003.Containing 45 articles in 7 chapters, the Directive provides detailed descriptionconcerning air space allocation and management, management and service provisionof flight activities, and legal liabilities. It articulates in detail specific requirementsfor and procedures of applying for general aviation flight plans.The Directive is an important measure taken by the central government to facilitatethe rapid growth of the sector by advocating an optimal utilization of air spaceresources. Since the issuance, the Directive has played a key role in promoting generalaviation activities and paved way for further relaxation of the low-altitude air spacerestrictions. The modifications to the Directive have also been completed which willbe released shortly, according to the National Air traffic Control Office.

  2.3 Industry-specific regulations, rules and procedures

  Over the years, CAAC has issued more than 30 industry-specific regulations, rules,procedures and notices applicable to general aviation sector to supplement CivilAviation Act 1995 and the two Directives issued by the State Council. The collectionof these regulations covers a wide spectrum of areas ranging from economicregulations, safety management and operation, licensing management, to technicalstandards and practices. The following are some of the key regulations and rules.

  The first is “General Operation and Flight Regulation” (Civil Aviation Regulation,CCAR-91, CAAC Order No 120), which became effective on 1 June 2004 and appliesto all civil aircraft registered in China engaging in civil aviation operation in itsterritory. The Regulation divides civil aviation into three components, e.g. publicaviation, general aviation and aerial work, though no definition is given to generalaviation. The Regulation classifies general aviation operators into three groups, namelycommercial non-traffic operator, private operator using large aeroplane, and aeroplanecharterer. Along the line of activities engaged by general aviation businesses, theRegulation categorizes them into commercial flight, training flight, air-sightseeing,and aerial work for agriculture. In defining a super-light aeroplane, the Regulationstipulates that it is a small aeronautical device to be engaged in recreational and sportsactivities flown by a single pilot, which does not require an airworthiness certificate.By streamlining distorted rules on flight and operation scattered in variousdocuments into one comprehensive and all-embracing legal document and settingdefinite business scopes of commercial aviation, general aviation and aerial work,CCAR-91 serves as an effective operational manual providing guidelines for generalaviation enterprises in their business engagement. It is also regarded as a milestonein the rule-making of general aviation which has since become more formalized tofollow legitimate procedures.

  A second important regulation is the “Regulation concerning the Issuance of AirOperator Certificate for General Aviation”(CCAR-135TR-R3, CAAC Order No. 176).

  Entering into effect in February 2007, the Regulation specifies the conditions of andrequirements for establishing a general aviation enterprise in the territory of China.It describes specifically the eligibility of businesses to engage in general aviation,documentation to submit, and procedures to follow when such applications areprocessed. The Regulation ensures that the issuance of a general aviation operatorcertificate is an important economic regulation mechanism to encourage market entry,and to safeguard fair competition and safety operation in general aviation sector.The third is “Management Regulation concerning Non-Commercial General AviationRegistration” (CCAR-285, CAAC Order No 130), which became effective inNovember 2004. It articulates the requirements for businesses to register with theauthorities when engaging in non-commercial general aviation activities.

  The Regulation provides that Chinese citizens, entities and/or other organizationsestablished in the territory of China are required to register with CAAC’s regionaladministrative offices, when engaging in non-commercial general aviation operation.These non-commercial general aviation activities refer to aircraft flights that are notoperated for remuneration. They include but are not limited to the following: medicaltreatment flight, self-used business jet flight, search and rescue, oceanic observation,fishing flight, meteorological observation, scientific research and experiment,firefighting, air policing and patrolling, air photographing, recreational and individualflight, aerial work for agriculture and fishing such as air planting and air fertilizing.

  In addition to the above, a series of 4 regulations were issued concerning foreigninvestment in aviation industry. They are “Regulation concerning Foreign Investmentin Civil Aviation Industry (CCAR-201, CAAC Order No. 110), Additional Regulationconcerning Foreign Investment in Civil Aviation Industry (CCAR-201LR-R1, CAACOrder No. 139), The Second Additional Regulation concerning Foreign Investmentin Civil Aviation Industry (CCAR-201LR-R2, CAAC Order No. 174), and the ThirdAdditional Regulation concerning Foreign Investment in Civil Aviation Industry(CCAR-201LR-R3, CAAC Order No. 189). Collectively, they specify therequirements for foreign investment in civil aviation industry including generalaviation sector in China and outline the procedures of and criteria for approving suchforeign investment in the industry. In particular, the Regulations advocate andencourage foreign investment in the construction of civil airports to engage in generalaviation activities such as agricultural, forestry and fishing aerial work. TheRegulations welcome the establishment of general aviation businesses to engage inbusiness and corporate flight, air sightseeing and other services supplementary to otherindustries. In regulating the proportion of foreign investment in the business, theRegulations require that the Chinese party should be the major shareholders providedthe proposed business is to engage in corporate flight, air sightseeing andsupplementary services to other industries. Should the proposed business be to engagein agricultural, forestry and fishing aerial work, the parties can negotiate an agreementin terms of investment proportion and share structures.

  Ⅴ. Deficiencies of the prevailing legalframework

  The collection of China’s aviation legislatures has significantly facilitated the rapid growth of the industry. It ensures a fair competition and safety management and safeguards a progressive development. However, a close examination has revealedthat there is a lack of uniform and consistency in the prevailing legal framework,and to some extent, contradictions in the provisions. The following deficiencies havebeen identified.

  1. Variation of definition and inconsistency withinternational practice

  A definition is a formal statement of the meaning or significance of a word, phrase,idiom, or a term, attempting to be an accurate, distinct, detailed and clear descriptionof the meaning so as to avoid any confusion or ambiguity. In legislation, althoughdefinition does not have independent status, it is one of the most crucial elementsas it ensures that the scope and connotation of a word or term is clearly and accuratelydefined in its context, and that it will not be interpreted otherwise by its expandedor referred meanings. A change in the meaning of the word or term would affectthe specifications.

  Annex 6, Part II to Chicago Convention defines general aviation operation as anaircraft operation other than a commercial air transport operation or an aerial workoperation36). By commercial air transport operation, Annex 6 explains that it refersto an aircraft operation involving the transport of passengers, cargo or mail forremuneration or hire, while aerial work is an aircraft operation in which an aircraftis used for specialized services such as agriculture, construction, photography,surveying, observation and patrol, search and rescue, aerial advertisement, etc37). Byexcluding aerial work operations from the definition of general aviation, ICAO arguesthat aerial work operations are not characterized with international features, thus thereis no need of formulating any international standards or recommended practices. Itis therefore viewed appropriate to be framed and worded in such a manner as tofacilitate its extension to cover aerial work operations at a later stage, should suchextension prove desirable38). The burden of regulating aerial work is thus left withindividual member states.

  In contrast, the Chinese definition of general aviation, which appears in severallegislatures, is much wider than that in Annex 6, Part II to Chicago Convention andtreats aerial work as an integral component of general aviation activities. As elaboratedin preceding analysis, Article 145 of Civil Aviation Act of China defines generalaviation as any civil aviation operation conducted by an aeroplane other than publicair transport operation. Such non-public air transport operation embraces specializedaerial works for industrial, agricultural, forestry, fishing and construction purposesas well as flight operation for the purpose of medical treatment, search and rescue,meteorological surveillance, oceanic observation, scientific research, education andtraining, and cultural and recreational activities.

  Furthermore, there is no consistency when the definition is used in differentlegislatures. Article 3 of the “Directives on General Aviation Flight Management2003”, 8 years later after China’s Civil Aviation Act 1995 was adopted, attemptsto expand the scope of exceptions which is not considered as general aviation activitiesby specifying that general aviation is any civil aviation operation except military,policing, customs patrolling, as well as public air transport operation, rather thanquoting the original definition in the Civil Aviation Act. The general aviationoperation, according to this Directive, includes not only specialised aerial works formanufacturing, agriculture, forestry, finishing, mining, construction but also flightoperation for the purpose of medical treatment, search and rescue, meteorologicalsurveillance, oceanic observation, scientific research and experiment, surveillance andsurvey, education and training, cultural and recreational activities, and air sightseeing.

  The broader Chinese definition fails to recognize one of the key features of aerialwork, which, on many occasions, is provided for remuneration and hire, despite somecommon grounds are shared between general aviation and aerial work. In addition,when different operation leads to different interpretation of legal definitions, suchdivergence would affect efficacy and cause confusion and inconsistency with apotential risk to endanger safety.

  In legislation, such errors should be avoided and minimized for the benefits ofjudiciary interpretation, effective implementation and enforcement. Policy makers are,thus, accountable to ensure that legislation is formulated in a clear, accurate, coherentand transparent manner to minimize any ambiguity and confusion.

  2. Lack of specialised laws regulating generalaviation activities and operation

  Although more than 100 laws and regulations have been adopted in Chinaconcerning civil aviation, about one third are formulated to regulate general aviationactivities, with the rest being concerned with public air transport and can be appliedto both public air transport and general aviation. Provisions of these industry-specificregulations and procedures read more like policy announcements, which are lack oflegitimate grounds that can be served as guidelines to be referred to and implementedto regulate the sector. The technical standards and practices of operation, the ruleson issuance of certificates and licenses on general aviation are borrowed from thoseapplicable to public commercial aviation. Some regulations and rules are issued inthe manner of a notice, which lacks the legitimate ground for implementation andenforcement. There is also a gap between the provisions of the standards and practicesadopted by China and those adopted by ICAO.For example, “Directive on General Aviation Flight Management” adopted in 2003is a detailed articulation regulating general aviation flight operation. However, therehave been no specific procedures to be promulgated ever since then to address theimplementation of the Directive. “Regulations concerning General Aviation Operationand Flight”, (CCAR-91), “Regulations concerning Licensing and Certifying Pilots,Flight Instructors, and Ground Instructors” (CCAR-61), and “Regulations concerningLicensing and Certifying Small Aircraft Commercial Operator” (CCAR-135) areimportant industry-specific rules regulating licensing, flight standards, flight safetyand aircraft airworthiness. However, these provisions are too generic and generalized,with no explicit specifications, thus making them unrealistic and impracticable forimplementation and enforcement.

  3. There exists a legal vacuum in some areasconcerning general aviation activities

  Scrutinizing the prevailing legal framework reveals that there exists a legal vacuumregulating certain types of general aviation activities. For example, there is no ruleregulating the establishment and operation of aero-clubs, the licensing of dispatchersfor such flight, and the airworthiness requirements of the aircraft used for such flight.China’s economic booming has produced tens of thousands of superrichentrepreneurs, who have purchased their private aircraft. To cater their taste, anincreasing number of aero-clubs have been set up across the country. These clubs,instead of engaging in activities prescribed in their business licenses issued by thecompetent authorities, have engaged in activities for remuneration that are not listedin their business scope. Their pilots and maintenance engineers do not hold theappropriate licenses for the work they do. The aerodromes used are not certified foraero-club activities, nor do the aircraft used meet airworthiness requirements forcertain types of activities such as taking on passengers for air sightseeing forremuneration. There is no safety management system or contingency measures inplace. Hence, some fatal accidents and injuries have happened, causing a numberof casualties and significant damage.Another void area is that there are no laws regulating the standards and practiceof construction and operation of airports exclusively used for general aviationactivities, resulting in excessive capital investment, facilities and equipment. Suchinefficacy has resulted in higher charges in general aviation airports, which increasedthe operational cost to be borne by general aviation businesses.

  4. Majority of regulations governing general aviationoperation are formulated at industry level ratherthan at national level.

  Although there is a good collection of legislatures concerning general aviation, majorityof them are industry-specific issued in the manner of procedures, notices, and guidelines,except Civil Aviation Act 1995 which is promulgated at the national level. Such anun-proportionate structure of legislation fails to raise the awareness of the significanceof the sector, nor be able to exert influence on a wider range of public in society.Legislation has played a key role in facilitating an industry’s growth anddevelopment. This has been manifested in both the USA and the EU. For example,between 1980 and 1987 the production of general aviation aircraft in the US fellfrom 11,877 to 1,085, a decline of 90 percent, which caused some 20,000 job lossesalong with 80,000 related jobs in sales, services and relevant industries39). The passageof the General Aviation Revitalization Act in 1994 had not only put an end to thelong tail of product liability that has haunted manufacturers of general aviation aircraft,but also revitalized other industries such as engineering, repair and maintenance thatwere supportive to general aviation.

  Recognizing the specific social and economic benefits provided by European generaland business aviation, the Council of European Union issued a Council Conclusionon the Commission communication on an agenda for sustainable future in generaland business aviation in April 2008. It provided an overview of the sector andpresented a coherent position as regards its future development. It reiterated the needfor regulations to be proportionate and ensured that safety would not be compromised. The review conducted by UK CAA on general aviation sector in 2006 led tosome modification of regulations and revival of the industry in the following years.

  Ⅵ. Necessity of an improved legalframework for general aviation

  A comprehensive and coherent legal framework is a safeguard of a healthy andorderly development of general aviation sector to contribute to the robust economicgrowth. The last few decades have seen China’s tremendous efforts in improvingits legal framework through formulating new legislation and modifying prevailinglaws and regulations. Nevertheless, it is undeniable that there exist deficiencies inthe current legislation as the preceding analysis reveals.

  Commercial air transport is usually provided by commercial airlines and requiresbigger aircraft, aerodromes with adequate facilities. General aviation, in contrast, tendsto use smaller aircraft and can be accommodated in smaller airports. The differentfeatures and characteristics of general aviation compared with commercial aviationare sufficiently great which deserve separate treatment for regulation, operations andfacilitation, in order to allow them to fulfill their respective roles effectively.

  The initial attempt to distinguish between general aviation and commercial aviationwas made by ICAO as early as 1969, when Annex 6 Part II to Chicago Conventionwas formulated. Since then, such distinctions between the two types of aviationoperations have been further recognized, recorded and incorporated in other Annexessuch as Annex 9 Facilitation, and Annex 17 Security, as well as numerous ICAOdocuments.While much of ICAO’s work concentrates on the commercial aviation operationof scheduled international services, regulating general aviation operation is to a greatextent left to individual member state, though the fundamental principles of ChicagoConvention and its Annexes must be honored and adhered to. For example, the USadopted “The General Aviation Revitalization Act of 1994”, which not only resuscitatedairplane manufacturing, engineering, sales, marketing, repair, maintenance, and relatedindustries supporting general aviation, but also set standards for general aviationoperations43). Australia has encapsulated general aviation operations in its AirNavigation Act and Civil Aviation Act. The UK’s Civil Aviation Act 1982 providesa legal framework governing general aviation operations with assurance of appropriatestandards of airworthiness, pilot qualification, rules for the movement of aircraft, andequipment to be carried.China’s rapid economic growth and industry dynamics has demonstrated that itscurrent legal framework is unable to meet the needs to foster a healthy growth ofgeneral aviation sector. The engagement in un-legitimate general aviation activitiesand frequent outburst of incidents has necessitated an urgent need to review andmodify its general aviation laws to ensure that a comprehensive and coherent legalframework is in place to facilitate a healthy and orderly growth of the sector.

  Ⅶ. Suggestions for improvement andconclusion

  Law and regulatory reform is a necessity in every society and economy in orderto ensure laws and related processes are more equitable, modern, fair and efficient.

  Good regulations carry the following features. The first is proportionality, whichmeans that regulators should only intervene when necessary. Remedies should beappropriate to the risk posed, and costs identified and minimized. The second featureof good regulation is accountability, which indicates that regulators must be able tojustify decisions and be subject to public scrutiny. Thirdly, good regulations shouldbe consistent which assures that government rules and standards must be joined upand implemented fairly. Transparency is another important feature which requires thatregulations should be open, simple and user friendly. Furthermore, a good regulationshould be targeting, e.g. the regulations should be focus on the problem and minimizeside effects. Finally, good regulations should be written in such a way that they areeasily understood, implemented, and enforced. All interested parties should beconsulted when they are being drafted.

  General aviation is an emerging aviation sector in China but is set to boom. Currentlegal framework governing general aviation activities fails to attend issues and addressconcerns of both the industry and public, thus, is unable to facilitate its robust andsustainable growth in the long term. An urgent need is required to rectify the legaldeficiencies in the prevailing legal framework and actions must be taken to ensurea sustainable and progressive development in general aviation sector. In this exercise,best practice of regulation development and reform should be followed in order toachieve an optimal outcome and leverage resources. The following suggestions areproposed to rectify the deficiencies identified in the proceeding analysis.

  1. Aligning Chinese definition with ICAO’s definitionand maintaining consistency across all laws andregulations

  First of all, it is crucial that one clearer, more accurate, concise and non-ambiguousdefinition of general aviation should be adopted in order to align with Annex 6 toChicago Convention and be applicable to all contexts. To this effect, aerial workshould be excluded from general aviation. In so doing, it will not only ensure theconsistency of the Chinese definition with Chicago Convention but also safeguardan effective and legitimate regulation of flight activities of general aviation and aerialwork, which carry different operational features and require distinctive safetyrequirements. The following wording can be considered regardless of circumstancesin which the definition is used. General aviation operation is an aircraft operationother than a commercial air transport operation or an aerial work operation. Generalaviation operation includes but is not limited to air taxi service, business and corporateflight, private flight, and sports and training flight. Aerial work operation refers tothe specialized service such as manufacturing, agriculture, forestry, fishing, andconstruction, as well as flight operation for the purpose of medical treatment, searchand rescue, meteorological surveillance, oceanic observation, and scientific researchand experiment.

  The proposed amendment of the Chinese definition should be adopted in the CivilAviation Act of China. As a legislature promulgated at national level, the Act servesas a guideline and foundation for all regulations, rules, procedures and ordersgoverning the operation of the general aviation sector. To avoid any unnecessarymisunderstanding and arbitrary interpretation, the wording of the definition should

  be applied to all regulations and rules to ensure consistency, hence improve effectiveimplementation and enforcement.

  2. A specific law focusing on the regulation ofgeneral aviation activities should be enacted ormore provisions to be included in the prevailingCivil Aviation Act to promote the developmentof the sector

  The Chinese government has recently issued a handful of policies to encouragethe development of general aviation sector, but these policies cannot be used as lawsregulating the general aviation activities. China could learn from the US which passedthe General Aviation Revitalization Act in 1994, which revitalized the industry andits supportive sectors. A specific law focusing on general aviation activities at nationallevel should be enacted to regulate every aspect of general aviation operation, whichincludes but is not limited to manufacturing, sale and marketing, engineering, researchand development, and other supportive services.Should this be a challenging task that cannot be achieved in the short term,modification of the current Civil Aviation Act should be made to address emergingissues such as safety and security, liability, environment protection and governmentsubsidy to general aviation.

  3. New laws and regulations are needed to fill in thelegal vacuum in general aviation operation

  The increasing demand for general aviation calls for authorities to act quickly andeffectively to regulate its activities and growth. Specifically, regulations in thefollowing areas should be considered. First, regulations should be formulatedconcerning flight and aircraft operation, aircraft registration and airworthiness, groundhandling services, licensing of engineers and professionals working for generalaviation sector, liability of general aviation products and operators, environmentprotection and safety and security. Second, regulations and procedures should bedeveloped concerning the establishment and management of aero clubs, the licensingand certifying of their pilots, engineers and aerodromes used. Criteria of setting upaero clubs and their scope of business should be stipulated explicitly to avoidmisconduct and ensure operation safety. Third, economic regulations such as marketentry, pricing, service provision and customer service should be formulated ormodified to encourage fair competition. Fourth, regulations on safety and accidentinvestigation applicable to general aviation need to be modified to reflect theoperational features of the sector. Requirements for the establishment of an effectivesafety management system should be clarified and specified and operationalprocedures and manuals should be developed for an effective implementation. Fifth,security regulations and procedures need to be developed to be commensurate with

  the most current risk and threat environment without imposing unnecessary costs onthe sector. Sixth, regulations concerning the construction and operation of generalaviation airports should be formulated. Mechanism should be established to encourageprivate investment in smaller and private airports for general aviation purposes. Andlast, rules on training requirements for general aviation pilots and professionals shouldbe developed in order to meet the demand and make sure that these professionalswill progress in their career development to contribute a source of qualified staffto the whole aviation industry.

  4. Existing laws and regulations should be modifiedand streamlined

  Majority of the existing laws and regulations concerning general aviation operationwere formulated in 1990s and 2000s. Recently some new regulations have beendeveloped in order to promote the growth of the sector, with one example being“Opinions on Deepening the Reform of Low-Altitude Air Space Management” jointlyissued in 2010 by the State Council and China Central Military Committee. Thisrequires amendment and modification of the prevailing regulations to ensure that thenew rules can be implemented. For example, “Directive on General Aviation FlightManagement” issued in 2003 would require urgent modification to reflect the changes45). Accordingly, “Regulations concerning General Aviation Operation and Flight”,(CCAR-91), “Regulations concerning Licensing and Certifying Pilots, FlightInstructors, and Ground Instructors” (CCAR-61), and “Regulations concerningLicensing and Certifying Small Aircraft Commercial Operator” (CCAR-135) needto be streamlined and modified. Provisions should be amended to ensure that licensingof personnel, flying procedures and air traffic management, ground handling services,and airport operation would not hinder the reform of the low-altitude air spacemanagement.In particular, Regulation concerning the Issuance of Air Operator Certificate forGeneral Aviation” (CCAR-135TR-R3, CAAC Order No. 176) needs to be modified.Provisions concerning the following areas should be amended. Capital threshold ofmarket entry should be lowered to encourage the establishment of general aviationenterprises. However, safety requirements should be enhanced to ensure a safe andresponsible operation. Expansion into international market should also be encouraged.Protections of consumers and third parties should be reinforced. Legal liabilities shouldbe specified to protect passengers and any parties involved in the operation.

  5. Regulations should be formulated to ensureinvestment in general aviation includinginvestment in the construction of generalaviation airports and enhance ground handlingservice capability

  Unlike commercial aviation, general aviation has its own characteristics whichrequire different operational facilities, standards and procedures to follow. It has playeda crucial role in contributing to China’s economic growth, promoting employmentopportunities and providing contingency services to the public. Nevertheless,compared with the US, EU and Australia, China’s general aviation is still at its infantstage, which requires policy support, sound regulation and significant investment.When “Provisional Procedure to Levy Aviation Development Fund” was issued bythe Ministry of Finance in March 2012, it provided that the fund could be used tosupport general aviation development, to subsidies freight operation, regionaloperation, international operation, medium and smaller airports, and those airport forjoint military and civilian use. However, to date, no implementation procedures havebeen formulated to stipulate in detail in what circumstances the fund can be usedto support general aviation and how to support general aviation. From this perspective,the Procedure became non-operational.

  To ensure that the fund can be used to support general aviation, CAAC shouldcoordinate with other government authorities and agencies to develop regulations,guidelines and procedures to attract investment in general aviation includinginvestment in the construction of general aviation airports and ground handlingfacilities to enhance service provision capabilities.

  6. Principles of government subsidy should bestipulated and specified

  General aviation has a specific economic and social role to play in that it offersprivate individuals, companies and local communities suitable, flexible and high qualitytransport services. These services increase peoples mobility, business productivity andregional cohesion46). One of such services is to provide transport for medical treatment,search and rescue, surveillance and patrolling. It is fulfilling government’s commitmentto make available public security services and enhance overall benefits to the public.General aviation has played a crucial role in enabling public in remote and lesspopulated regions to have access to such contingent public services, when regular publictransport service is not available or difficult to be provided.To this effect, the principle of government subsidy to general aviation servicesshould be established in the law. The importance of the principle is highlighted bythe case when a captain of Hainan Airline refused to take on-board a minor wholost her leg in an accident in Jiayuguan, Guansu province in January 2006. The caseprovoked a hot debate in society: who should provide transport service to save thelife of a minor, is the commercial carrier in question obliged to do so, or shouldthere be a different type of business such as a general aviation company that shoulddo the job?Despite providing air transport for contingent medical treatment is one of the generalaviation activities recognized in China’s prevailing legal framework, the fact is thatthere are no existing general aviation enterprises that are engaged in this type ofoperation. One of the key considerations is who is paying the cost and who iscoordinating such flight tasks to involve professional resources including first-aidspecialists, pilots, equipment, and police. The injuries and casualties resulted fromthe frequent happening of catastrophes and natural disasters call for an urgent needto have this principle of government subsidy to be in place in order to ensure thatthe public have access to medical treatment in emergencies.

  7. Principles of environment protection should beclarified to ensure a sustainable growth of thesector

  The contribution of general aviation to economic growth is apparent and observable.However, the operation also has a significant impact on environment and habitatbalance, affecting residents, crops and animals. Like most other forms of transport,it produces noise and gaseous emissions which have a negative impact on theenvironment. The responsibilities and obligations of operators and users of generalaviation in protecting environment has become a critical issue to be clarified andaddressed in China’s aviation law.The “Environmental Protection Act of China” provides that “environment is acompound collection of natural resources which may have an effect and impact onthe existence and development of human beings, and may be affected, impacted orendangered by human beings’ activities. The resources include but are not limitedto atmosphere, water, ocean, earth, minerals, forestry, grassland, wild life, naturalheritage, natural protection areas, cultural heritage, cities and countries”. When naturalresources are exploited, environment must be protected.Although Article 149 of Civil Aviation Act stipulates that effective measures shouldbe in place when aerial work is provided so as to ensure flight safety, protectenvironment and habitat balance, and avoid negative impact on environment, residents,crops, and animals, there are no explicit articulation as to what constitutes effectivemeasures in the Act. Thus, it becomes the responsibility of an individual operatorto determine what mechanism should be in place, what measures are consideredeffective and how effective they are.

  The “Noise and Pollution Protection Act of China” also requires that “allorganizations and individuals are obliged to protecting the public from noisepollution”. Yet, there are no detailed and unified descriptions as to how to measureand calculate noise levels produced by aircraft. Nor are there any rules concerninghow to address and justify the lawsuits of noise pollution and how to compensatethe noise-affected residents. The past few decades have seen a sharp increase incomplaints from residents in flight candors and unresolved legal cases on aircraftnoise due to the lack of legal grounds for a legitimate judicial decision.To address the above issues, new provisions are required to be either incorporatedinto the prevailing legislatures or formulated in new regulations to specify whatresponsibilities and obligations the general aviation operators should bear in protectingthe environment to ensure a sustainable aviation growth. In particular, environmentalstandards applying to aviation should be established. Certification standardsconcerning aircraft should be reviewed and pilot education should be improved whichin turn could further contribute to reduction of negative impacts.

  To summarize, law and regulatory reform is a challenging task as there are alwaysnew phenomena that laws and regulations fail to recognize or address. General aviationis an important component of aviation in China. It is also a considerable componentof the national airspace and airport system and is relevant to issues in air trafficmanagement, air transport infrastructure, and aviation safety and security. Furthermore,it is of significance to society as a whole and to other stakeholders, including pilotgroups, aircraft manufacturers, and the work force. A sustainable and progressivedevelopment of the sector could only be ensured when a comprehensive legal systemis in place. The Chinese authorities have made significant efforts in its legal reformand modification regulating the general aviation activities. However, there is still along way to go.

  Abstract

  Deficiencies of China’s General Aviation Law and its Improvement

  General aviation is an integral part of civil aviation and involves the widest rangeof aviation segments except commercial aviation. Featured with different operationalprocedures and practices to satisfy the economic needs and safety requirements ofa sovereign state, general aviation tends to be regulated by an individual state. Thelast three decades have seen exponential growth of commercial air transport in China,but its general aviation sector has remained disproportionally underdeveloped. Withthe deepening of the reform of low-altitude airspace, the sector is poised for a radicalchange and rapid growth. However, legislation governing general aviation activitiesin China is distorted causing inconsistency and confusions in their application andimplementation. This paper aims to analyze China’s prevailing legislation regulatinggeneral aviation activities. It first discusses the various definitions adopted by ICAOand its member states and reviews the development of general aviation in the US,EU, Austral

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