• The Korean Society of Law and Medicine
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• v.13 no.1
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• pp.199-247
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• 2012

According to the review and analysis of medical cases that are assigned to the Supreme Court and all local High Court in 2011 and that are presented in the media, it was found that the following categories were taken seriously, medical and pharmaceutical product liability, the third principle of trust between medical institutions, negligence and causation estimation, responsibility limit, the meaning of medical records and related judgment of disturbed substantiation, Oriental doctors' duties to explain the procedures, IMS events, whether one can claim for each medical care operated by non-physician health care institutions to the nonmedical domain in the National Health Insurance Corporation, and the basis of norms for each claim. In the cases related to medical pharmaceutical product liability, Supreme Court alleviated burden of proof for accidents with medical and pharmaceutical products prior to the practice of Product Liability Law and onset the point of negative prescription as the time of damage strikes to condition feasibility of the specific situation. In the cases related to the 3rd principle of trust between medical institutions, the Supreme Court refused to sentence the doctor who has trusted the judgment of the same third-party doctors the violations of the care duty. With respect to proof of a causal relationship and damages in a medical negligence case, the Supreme Court decided that it is unjust to deny negligence by the materials of causal relationship rejecting the original verdict and clarified that the causal relationship shall not deny the reasons to limit doctors' responsibilities. In order not put burden on patients with disadvantages in which medical records and the description of the practice or the most fundamental and important evidence to prove negligence and causation are being neglected, the Supreme Court admitted in the hospital's responsibility for the case of the neonate death of suffocation without properly listed fetal heart rate and uterine contraction monitor. On the other hand, the Seoul Western District Court has admitted alimony for altering and forging medical records. With respect to doctors' obligations to description, the Supreme Court decided that it is necessary to explain the foreseen risks by the combination of oriental and western medicines emphasizing the right of patient's self-determination. However, questions have arisen whether it is realistically feasible or not. In a case of an unlicensed doctor performing intramuscular stimulation treatment (IMS), the Supreme Court put off its decision if it was an unlicensed medical practice as to put limitation of eastern and western medical practices, but it declared that IMS practice was an acupuncture treatment therefore the plaintiff's conduct being an illegal act. In the future, clear judgment on this matter should be made. With respect to the claim of bills from non-physical health care institutions, the Supreme Court decided to void it for the implementation of the arrangement is contrary to the commitments made in the medical law and therefore, it is invalid to claim. In addition, contrast to the private healthcare professionals, who are subject to redemption according to the National Healthcare Insurance Law, the Seoul High Court explicitly confirmed that the non-professionals who receive the tort operating profit must return the unjust enrichment and have the liability for damages. As mentioned above, a relatively wide range of topics were discussed in medical field of 2011. In Korea's health care environment undergoing complex changes day by day, it is expected to see more diverse and in-depth discussions striding out to the development in the field of health care.

• Bulletin of the Society of Naval Architects of Korea
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• v.61 no.1
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• pp.16-29
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• 2024

2014년 4월 18일 오전 8시 48분경 전라남도 병풍도 인근 해역에서 세월호는 전복된 후 침몰하였다. 사고 당시 이 배에는 승객 443명과 선원 및 승무원 33명 모두 476명이 타고 있었고, 이 중 미수습자 5명을 포함하여304명이 생명을 잃었다. 그 동안 공식적인 사고원인 규명활동이 꾸준히 진행되어 이 사고의 원인을 규명하기 위한 조사가 네 차례 있었다. 하지만 아직까지 사고 원인이 무엇인지 명쾌하게 밝혀지지 않고 있다. 이 글에서는 먼저 그동안 있었던 네 차례의 공식적인 세월호 사고원인 규명활동을 정리하였다. 가장 먼저 사고원인 규명활동을 전개한 해양안전심판원 특별조사부는 2014년 사고 직후부터 그해 12월까지 활동하였다. 특별조사부 최종보고서에는 화물의 과적과 평형수 적재 부족으로 인한 선박복원성 기준 미달, 타각의 대각도 조타와 장시간 유지로 인한 부적절한 조타, 화물의 부실한 고박으로 인한 화물의 이동, 수밀문의 관리 부실로 인한 조기 침수와 비상대피장소(muster station)로의 승객대피 조치 미이행을 사고의 원인으로 들고 있다. 2015년 3월부터 2016년 6월까지 활동한 4·16세월호참사 특별조사위원회(특조위)는 '4·16 세월호 참사 특별 조사위원회 청산 백서'만을 간행하고 최종보고서를 제출하지 못한 채 활동을 종료하였다. 세월호 선체조사위원회(선조위)는 2017년 4월부터 2018년 8월까지 활동하였다. 선조위는 세월호 사고원인 규명을 위한 다른 기구에 비해 위원의 구성도 균형이 있었고, 직권사건 위주의 조사방법도 적절하였다. 또한 조타기와 조타 과실 여부, 급선회 항적 및 횡경사와 핀안정기의 물리적 손상에 관한 용역을 국내 여러 기관에 발주하였다. 뿐만 아니라 다양한 해양사고 원인규명 용역에 참여한 실적이 있는 영국의 기술용역회사인 Brookes Bell에 급선회와 빠른 침몰의 원인 조사를 요청하였다. 아울러 세계에서 가장 활발히 수조실험을 수행하고 있는 상업 연구소인 네덜란드의 MARIN에 수조시험과 시뮬레이션도 의뢰하였다. 하지만 아쉽게도 선조위는 서로 다른 사고 원인을 주장하는 두 권의 종합보고서를 간행하였다. 종합보고서로 '내인설' 종합보고서[6]는 타기 솔레노이드 밸브의 고착으로 시작된 급선회를 사고의 직접 원인으로 지목하고 있다. 하지만 '열린안' 종합보고서[7]에서는 수중체와의 충돌을 직접적인 사고 원인으로 밝히고 있다. 마지막으로 가습기살균제 사건과 4·16세월호 참사 특별조사위원회(사참위)가 2019년 3월부터 2022년 9월까지 활동하였다. 사참위는 위원으로 조선해양공학과 항해학 전문가가 포함되어 있지 않아 세월호의 사고원인 규명활동을 효과적으로 수행하기에는 적절하지 못하였다. 사참위는 주로 조타장치 고장에 따른 세월호 전타 선회현상 검증, 세월호 변형 손상부의 확인 및 원인 조사와 세월호 횡경사 원인과 침수과정 분석을 직권 과제로 추진하였다. 또한 네덜란드 MARIN에 자유항주시험을 추가로 의뢰하였으며, 핀란드의 NAPA group에도 복원성 계산과 침수해석을 의뢰하였다. 사참위는 선조위의 두 가지 사고원인에 대해 '내인설'의 솔레노이드 밸브 고착은 사고원인일 가능성이 매우 낮고, '열린안'의 수중체와의 충돌 시나리오는 근거가 부족함을 확인하였다. 이상에서 정리한 바와 같이 규명활동이 진행됨에 따라 사고원인이 수렴되어야 함에도 불구하고 아직까지 원인을 시원하게 밝히지 못하고 있다. 이 글에서는 사고원인 규명활동을 수행한 네 개 기구의 구성과 활동 내용을 비교하고, 사고조사 위원회의 바람직한 구성과 위원회의 운영 방법을 제시하고 있다. 또한 Brookes Bell 보고서에 수록된 출항 당시의 흘수에 근거한 배수량과 선미 램프의 폐쇄 전후의 횡경사각으로부터 도출한 GoM도 소개하고 있다. 아울러 출항 당시의 GoM값으로 추정한 사고 당시의 GoM값도 소개하고 있고, 수중체와의 충돌 시나리오를 후보 사고 시나리오에서 제외시켜야 할 이유도 열거하고 있다. 끝으로 해양사고 원인규명 활동이 보다 과학적으로 그리고 보다 합리적으로 이루어질 수 있기 위해 그리고 우리 사회의 안전문화 제고를 위한 몇 가지의 방안을 제시하고 있다. 또한 세월호 사고로 치른, 아직도 치르고 있는 희생을 딛고 해양안전문화가 한 걸음 더 나아가기 위해서는 세월호 사고의 원인을 반드시 규명해야 한다는 말씀으로 글을 마무리하고 있다.

• The Korean Journal of Air & Space Law and Policy
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• v.18
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• pp.9-39
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• 2003

The rule of the Warsaw Convention of 1929 are well known and still being all over the world. The Warsaw Convention is undoubtedly the most widely accepted private international air law treaty with some 140 countries. In the international legal system for air transportation, the Warsaw Convention has played a major role for more than half century, and has been revised many times in consideration of the rapid developments of air high technology, changes of social and economic circumstances, need for the protection of passengers. Some amendments became effective, but others are still not effective. As a result, the whole international legal system for air transportation is at past so complicated and tangled. However, the 'Warsaw system' consists of the Warsaw Convention of 1929 the Guadalajara Convention of 1961, a supplementary convention, and the following six protocols: (1) the Hague Protocol of 1955, (2) the Guatemala Protocol of 1971, (3) the Montreal Additional Protocols, No.1, (4) the Montreal Additional Protocol No.2, (5) the Montreal Additional Protocol No.3, and (6) the Montreal Additional Protocol No.4. of 1975. As a fundamental principle of the air carrier's liability in the international convention and protocols, for instance in the Warsaw Convention and the Hague Protocol, the principle of limited liability and a presumed fault system has been adopted. Subsequently, the Montreal Inter-carrier Agreement of 1966, the Guatemala City Protocol, the Montreal Additional Protocol No.3, and the Montreal Additional Protocol No. 4 of 1975 maintained the limited liability, but substituted the presumed liability system by an absolute liability, that is, strict liability system. The Warsaw System, which sets relatively low compensation limits for victims of aircraft accidents and regulates the limited liability for death and injury of air passengers, had become increasingly outdated. Japanese Airlines and Inter-carrier Agreement of International Air Transport Association in 1995 has been adopted the unlimited liability of air carrier in international flight. The IATA Inter-Carrier Agreement, in which airlines in international air transportation agree to waive the limit of damages, was long and hard in coming, but it was remarkable achievement given the political and economic realities of the world. IATA deserves enormous credit for bringing it about. The Warsaw System is controversial and questionable. In order to find rational solution to disputes between nations which adopted differing liability systems in international air transportation, we need to reform the liability of air carriers the 'Warsaw system' and fundamentally, to unify the liability system among the nations. The International Civil Aviation Organization(ICAO) will therefore reinforce its efforts to further promote a legal environment that adequately reflects the public interest and the needs of the parties involved. The ICAO Study Group met in April, 1998, together with the Drafting Committee. The time between the "Special Group on the Modernization and Consolidation of the 'Warsaw system'(SGMW)" and the Diplomatic Conference must be actively utilized to arrange for profound studies of the outstanding issues and for wide international consultations with a view to narrowing the scope of differences and preparing for a global international consensus. From 11 to 28 May 1999 the ICAO Headquarters at Montreal hosted a Diplomatic Conference convened to consider, with a view to adoption, a draft Convention intended to modernize and to integrate replace the instruments of the Warsaw system. The Council of ICAO convened this Conference under the Procedure for the Adoption of International Conventions. Some 525 participants from 121 Contracting States of ICAO attended, one non-contracting State, 11 observer delegations from international organizations, a total of 544 registered participants took part in the historic three-week conference which began on 10 May. The Conference was a success since it adopted a new Convention for the Unification of Certain Rules for International Carriage by Air. The 1999 Montreal Convention, created and signed by representatives of 52 countries at an international conference convened by ICAO at Montreal on May 28, 1999, came into effect on November 4, 2003. Representatives of 30 countries have now formally ratified the Convention under their respective national procedures and ratification of the United States, which was the 30th country to ratify, took place on September 5, 2003. Under Article 53.6 of the Montreal Convention, it enters into force on the 60th day following the deposit of the 30th instrument of ratification or acceptation. The United States' ratification was deposited with ICAO on September 5, 2003. The ICAO have succeeded in modernizing and consolidating a 70-year old system of international instruments of private international law into one legal instrument that will provide, for years to come, an adequate level of compensation for those involved in international aircraft accidents. An international diplomatic conference on air law by ICAO of 1999 succeeded in adopting a new regime for air carrier liability, replacing the Warsaw Convention and five other related legal instruments with a single convention that provided for unlimited liability in relation to passengers. Victims of international air accidents and their families will be better protected and compensated under the new Montreal Convention, which modernizes and consolidates a seventy-five year old system of international instruments of private international law into one legal instrument. A major feature of the new legal instrument is the concept of unlimited liability. Whereas the Warsaw Convention set a limit of 125,000 Gold Francs (approximately US$ 8,300) in case of death or injury to passengers, the Montreal Convention introduces a two-tier system. The first tier includes strict liability up to l00,000 Special Drawing Rights (SDR: approximately US$ 135,000), irrespective of a carrier's fault. The second tier is based on presumption of fault of a carrier and has no limit of liability. The 1999 Montreal Convention also includes the following main elements; 1. In cases of aircraft accidents, air carriers are called upon to provide advance payments, without delay, to assist entitled persons in meeting immediate economic needs; the amount of this initial payment will be subject to national law and will be deductable from the final settlement; 2. Air carriers must submit proof of insurance, thereby ensuring the availability of financial resources in cases of automatic payments or litigation; 3. The legal action for damages resulting from the death or injury of a passenger may be filed in the country where, at the time of the accident, the passenger had his or her principal and permanent residence, subject to certain conditions. The new Montreal Convention of 1999 included the 5th jurisdiction - the place of residence of the claimant. The acceptance of the 5th jurisdiction is a diplomatic victory for the US and it can be realistically expected that claimants' lawyers will use every opportunity to file the claim in the US jurisdiction - it brings advantages in the liberal system of discovery, much wider scope of compensable non-economic damages than anywhere else in the world and the jury system prone to very generous awards. 4. The facilitation in the recovery of damages without the need for lengthy litigation, and simplification and modernization of documentation related to passengers. In developing this new Montreal Convention, we were able to reach a delicate balance between the needs and interests of all partners in international civil aviation, States, the travelling public, air carriers and the transport industry. Unlike the Warsaw Convention, the threshold of l00,000 SDR specified by the Montreal Convention, as well as remaining liability limits in relation to air passengers and delay, are subject to periodic review and may be revised once every five years. The primary aim of unification of private law as well as the new Montreal Convention is not only to remove or to minimize the conflict of laws but also to avoid conflict of jurisdictions. In order to find a rational solution to disputes between nations which have adopted differing liability systems in international air transport, we need fundamentally to reform their countries's domestic air law based on the new Montreal Convention. It is a desirable and necessary for us to ratify rapidly the new Montreal Convention by the contracting states of lCAO including the Republic of Korea. According to the Korean and Japanese ideas, airlines should not only pay compensation to passengers immediately after the accident, but also the so-called 'condolence' money to the next of kin. Condolence money is a gift to help a dead person's spirit in the hereafter : it is given on account of the grief and sorrow suffered by the next of kin, and it has risen considerably over the years. The total amount of the Korean and Japanese claims in the case of death is calculated on the basis of the loss of earned income, funeral expenses and material demage (baggage etc.), plus condolence money. The economic and social change will be occurred continuously after conclusion of the new Montreal Convention. In addition, the real value of life and human right will be enhanced substantially. The amount of compensation for damage caused by aircraft accident has increased in dollar amount as well as in volume. All air carrier's liability should extend to loss of expectation of leisure activities, as well as to damage to property, and mental and physical injuries. When victims are not satisfied with the amount of the compensation for damage caused by aircraft accident for which an airline corporation is liable under the current liability system. I also would like to propose my opinion that it is reasonable and necessary for us to interpret broadly the meaning of the bodily injury on Article 17 of the new Montreal Convention so as to be included the mental injury and condolence. Furthermore, Korea and Japan has not existed the Air Transport Act regulated the civil liability of air carrier such as Air Transport Act (Luftverkehrsgestz) in Germany. It is necessary for us to enact "the Korean Air Transport Contract Act (provisional title)" in order to regulate the civil liability of air carrier including the protection of the victims and injured persons caused by aircraft accident.

• The Korean Journal of Air & Space Law and Policy
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• v.19 no.2
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• pp.9-53
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• 2004

This paper described the contents of theme entitled "Domestic Legislative Problems on the Civil Liability of Air Carrier in Korea" including the current example of fourteen countries' legislation ((1) Great Britain, (2) United States of America, (3) Canada, (4)European Union), (5) Germany, (6) France, (7) Italy, (8) Spain, (9) Swiss, (10) Australia, (11) Japan, (12) People's Republic of China, (13) Taiwan, (14) North Korea) relating to the aviation law or air transport law. Though the Korean and Japanese aviation act has provided only the public items such as (1) registration of aircraft, (2) persons engaged in aviation, (3) operation of aircraft, (4) aviation facilities including airport, (5) air transport business, (6) investigate of aircraft accidents etc., but they could not regulated the private items such as the legal relations of the air transport contract (1) air passenger ticket, (2) air luggage ticket, (3) airway bill, (4) liability of air carrier, (5) amount of compensation for damage caused by aircraft accidents, (6)jurisdiction, (7) arbitration, (8) limitation of action, (9) combined carriage, (10) carriage by air performed by an actual carrier other than contracting carrier, damage caused by aircraft to the third parties etc. in their aviation act until now. In order to solve speedily the legal problems on the limitation of air carrier's liability and long law suit and disputes between wrongdoers and survivors etc, it is necessary and desirable for us to enact a new "Draft for the Air Transport Act" including the abovementioned private items. I would like to propose personally and strongly the legislation of "Draft for the Air Transport Act" in Korea in emphasizing the importance of ensuring protection of the interests of consumers air passengers and shippers in carriage by air and the need for equitable compensation between air carriers and survivors caused by the aircraft accidents such as the German Air Transport Act (Luftverkerhrsgesetz).