• The Korean Society of Law and Medicine
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• v.11 no.2
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• pp.149-179
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• 2010

In November 2007, the Korean Constiutional Court held that a joint penal provision in which the individual employer is punished when his or her employee is determined to have committed a crime was unconstitutional, because the joint penal provision had no contents for the culpability of an individual employer and thus violated the constitutionally protected principle of culpability. After the Korean Constitutional Court's judgment, since December 2008 the Ministry of Justice began to change the old joint penal provision into the new revised joint penal provision. On January 2010, the old joint penal provisions of 110 laws were revised. The new revised joint penal provision adds only an additional sentence: "If a juristic person, an entity or an individual perform due care and supervision over its employee for the prevention of such a crime, it will be exempted from the punishment". But an presumption of negligence clause that is added in the new revised joint penal provision is still vacuum in concerned with supervision responsibility. Probably the new form of penal provision, that is understood to be a kind of the presumption of negligence, could let the burden of proof be changed from the public prosecutor to the accused, in other words employer-side. Especially, when joint penal provision is applied to hospital as administrative punishment, according to the hospital is a (juridical) foundation or not, the application of the joint penal provision is different and unfaithful. In my opinion, therefore, a corporation liability could be considered according to various liability of employee's business and the crime its employee committed because of an organizational failure of the corporation.

• The Korean Society of Law and Medicine
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• v.15 no.2
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• pp.435-459
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• 2014

Supreme Court of Korea has been mitigating the burden of proof on the malpractice and causal relation by a patient in accordance with the practical transfer of such burden of proof on causal relation as well as relieving a doctor's burden of proof on mistake in the civil damage claim suits on the malpractice. However, a prosecutor shall strictly prove the causal relation between malpractice and unfavorable results as well as a doctor's mistake in the criminal cases for making a doctor accept the professional negligence resulting in death or injury in accordance with In Dubio Pro Reo principles. Furthermore, it shall not be allowed to relieve the burden of proof on malpractice and causal relation which has been frequently applied in the civil proceedings. Nevertheless, it was widely known that the front-line courts accepted the malpractice and causal relation by quoting the legal principles on relieving the burden of proof on malpractice and causal relation applied in the civil cases even in criminal cases with no or insufficient proof on malpractice or causal relation. However, the latest precedents in Supreme Court explicitly declared the opinion that there was no reason to apply the legal principle to relieve the burden of proof on the malpractice and causal relation in the criminal cases requiring the proof 'which doesn't cause any reasonable doubt' on malpractice and causal relation in accordance with the legal principles 'favorable judgment for a defendant in case of any doubt' on the basis of the strict principle of 'nulla poena sine lege.' Accordingly, Supreme court definitely clarified that there would be no reason to relieve the burden of proof on malpractice and causal relation in criminal cases by reversing several original judgments accepting malpractice and causal relation even though there were no strict evidence.

• Quality Improvement in Health Care
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• v.29 no.2
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• pp.15-31
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• 2023

Purpose: This study aimed to identify the characteristics of patient safety incidents (PSIs) related to nursing and to provide primary data for preventing the recurrence of similar incidents. Methods: This secondary analysis study included damage claims rulings filed for clinical negligence from 2014 to 2018 that contained the keyword 'nurse'. It excluded judgments irrelevant to nursing care and in which clinical negligence or causal damages were overruled. A total of 93 cases were analyzed. The characteristics of PSIs were derived through descriptive statistics, and two instances of nursing-related PSIs were examined by qualitative content analysis focusing on root causes. Results: The analysis of PSIs related to nursing suggested that the medical institutions where the PSIs occurred most frequently were hospitals, and the most common types of PSIs were medication, surgery, and treatment/procedure, in that order. In addition, it indicated that nursing-related PSIs occurred most frequently in general wards during the day shift, with the most common related nursing practice being managing potential risk factors. The qualitative analysis showed that careless monitoring and institutional inertia were causes of PSIs. Conclusion: To prevent nursing-related PSIs, nurses need to individually monitor and assess patient conditions. In addition, support should be accompanied by the improvement in the systems in place aimed at preventing the recurrence of nursing-related PSIs at the institutional and national level, such as securing appropriate nursing personnel and improving labor conditions.

• The Korean Society of Law and Medicine
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• v.21 no.1
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• pp.107-152
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• 2020

During the main ruling in 2019, a number of rulings that were of interest or meaningful were handed down, such as just because the complication of medical practice has occurred, there is no presumption of negligence, a case involving a fall accident in which a lot of culpability has recently been made. the death of a well-known singer that caused a sensation, a case about damages caused by MERS in 2015, which is more meaningful in connection with damages caused by COVID-19, an infectious disease that has recently hit the world, including Korea. In preaching the principles of the law, just because there has been a complication caused by medical practice, there is no presumption of negligence, 'The scope of the complication without presumption of negligence' was determined differently by the court, the court was not able to specify the criteria. Specific circumstances were presented to limit the responsibility of the medical institution while acknowledging the malpractice of the medical institution in relation to the fall accident. In relation to the scope of damages, judgment was made on issues related to the calculation of lost profits of medical malpractice; criteria for determining celebrities' daily income, criteria for determining daily income in case of receiving survivor's pension due to medical accident, an incident in which the daily income is denied if the labor capacity is already lost at the time of a medical accident. But, it seems that judgments should be made based on clearer and more reasonable standards. Related to Medical Advertise, specific logic of judgment was presented as to whether it was interpreted as being in accordance with the specific prohibition listed in Article 27 paragraph 3 of the Medical Law, which is the criterion for violation of the Medical Law, or if it constitutes a significant harm to the order of the medical market. In response to the prohibition of operating the multiple medical institutions, the Constitutional Court decided that it was constitutional because it did not violate the regulations on excessive funding, and rationally limited the scope of the prohibited 'redundant operation'. The Supreme Court ruled for the first time that even a medical institution established and operated in violation of the Medical Service Act did not make it impossible to receive all medical care benefits implemented by a medical institution under the National Health Insurance Act. Significant rulings were finalized that recognized the existence of specific protection obligations for the people of the country in the management of infectious diseases.

• The Journal of the Korea Contents Association
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• v.21 no.8
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• pp.305-314
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• 2021

According to the recent judgment of Supreme Court, in case when the National Health Insurance Service pays the insurance to a victim of torts, and then subrogate the victim's claim for damages, the scope of institution's subrogation should be limited to the amount of the assailant's responsibility rate of the institution charge, and the amount of compensation claimed by the victim to the assailant should be calculated in the method of contributory negligence after deduction. The court has judged that the institution could subrogate the whole amount of institution charge in the limit of assailant's damages, and the method of deduction after contributory negligence should be applied when calculating the assailant's damages to the victim. Supreme Court decision is greatly significant in the aspect of harmonizing the nature of health insurance as property right and social insurance as the beneficiaries could get additional supplement, and also seeking the balance between insurer and beneficiary. With the changed legal principles of Supreme Court in the scope of institution subrogation like this, the necessities to complement the litigation relation, legislation, and institution were suggested.

• Journal of the Korean Society for Aviation and Aeronautics
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• v.29 no.4
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• pp.52-66
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• 2021

In the aviation, airmans play a key role in aviation safety and perform tasks within a given range based on professional knowledge. If they fail to properly fulfill their obligations under the Aviation Safety Act, the Ministry of Land, Infrastructure and Transport(MOLIT) will dispose of them in accordance with the purpose of the Aviation Safety Act. However, in the case of this disposition, it does not specifically consider the circumstances of the violation, and has a limitation in that the evidence regulations are too limited, and the contents of the disposition are uniform. Therefore, this study attempted to present a plan to improve the disposition in order to improve the problem of administrative disposition for airman. To this end, we conducted a comparative analysis of the disposition of airmans through overseas cases, and Specifically, the three-stage disposition model and effectiveness were conducted in the direction of specific judgment on violations and predictability of disposition. We would like to propose a safety improvement order to increase the level of safety and proposed amendments to the law for the method of imposing a fine for negligence.

• The Korean Journal of Air & Space Law and Policy
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• v.28 no.2
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• pp.3-35
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• 2013

Air transport today is a means of transport that is optimized for exchanges between nations. Around the world, has experienced an increase in operating and the number of airline route expansion that has entered into the international aviation agreements in order to take advantage of the air transport efficient, but the possibility of the occurrence of air transport accidents increased. When compared to the accident of other means of transport, development of air transport accidents, not high, but it leads to catastrophe aviation accident occurs. Air Transport accident many international transportation accident than domestic transportation accident, in the event of an accident, the analysis of the legal responsibility of the shipper or the like is necessary or passenger air carrier. Judgment of the legal order of discipline of air transport accident is a classification of the type of air transport agreement. Depending on the object, air transport agreements are classified into the contract of carriage of aviation of the air passenger transportation contract. For casualties occurs, air passenger transportation accident is a need more discussion of legal discipline for this particular. Korean Commercial Code, it is possible to reflect in accordance with the actual situation of South Korea the contents of the treaty, which is utilized worldwide in international air transport, even on the system, to control land, sea, air transport and welcoming to international standards. However, Korean Commercial Code, the problem of the Montreal Convention has occurred as it is primarily reflecting the Montreal Convention. As a cause of liability for damages, under the Commercial Code of Korea and the contents of the treaty precedent is reflected, the concept of accident is necessary definition of the exact concept for damages of passengers in particular. Cause of personal injury or death of passengers, in the event of an accident to the "working for the elevation" or "aircraft" on, the Montreal Convention is the mother method of Korea Commercial Code, liability for damages of air carrier defines. The Montreal Convention such, continue to be a matter of debate so far in connection with the scope of "working for the lifting of" the concepts defined in the same way from Warsaw Convention "accident". In addition, it is discussed and put to see if you can be included mental damage passenger suffered in air transport in the "personal injury" in the damage of the passenger is in the range of damages. If the operation of aircraft, injury accident, in certain circumstances, compensation for mental damage is possible, in the same way as serious injury, mental damage caused by aviation accidents not be able to live a normal life for the victim it is damage to make. So it is necessary to interpret and what is included in the injury to the body in Korea Commercial Code and related conventions, non-economic damage of passengers, clearly demonstrated from the point of view of prevention of abuse of litigation and reasonable protection of air carrier it must compensate only psychological damage that can be. Since the compensation of delay damages, Warsaw Convention, the Montreal Convention, Korea Commercial Code, there are provisions of the liability of the air carrier due to the delayed arrival of passenger and baggage, but you do not have a reference to delayed arrival, the concept of delay arrangement is necessary. The strict interpretation of the concept of delayed arrival, because it may interfere with safe operation of the air carrier, within the time agreed to the airport of arrival that is described in the aviation contract of carriage of passenger baggage, or, these agreements I think the absence is to be defined as when it is possible to consider this situation, requests the carrier in good faith is not Indian or arrive within a reasonable time is correct. The loss of passenger, according to the international passenger Conditions of Carriage of Korean Air, in addition to the cases prescribed by law and other treaties, loss of airline contracts, resulting in passengers from a service that Korean Air and air transport in question do damage was is, that the fact that Korean Air does not bear the responsibility as a general rule, that was caused by the negligence or intentional negligence of Korean Air is proof, negligence of passengers of the damage has not been interposed bear responsibility only when it is found. It is a clause in the case of damage that is not mandated by law or treaty, and responsible only if the negligence of the airline side has been demonstrated, but of the term negligence "for" intentional or negligent "Korean Air's Terms" I considered judgment of compatibility is required, and that gross negligence is appropriate. The "Korean Air international passenger Conditions of Carriage", airlines about the damage such as electronic equipment that is included in the checked baggage of passengers does not bear the responsibility, but the loss of baggage, international to arrive or depart the U.S. it is not the case of transportation. Therefore, it is intended to discriminate unfairly passengers of international flights arriving or departure to another country passengers of international flights arriving or departure, the United States, airlines will bear the responsibility for the goods in the same way as the contents of the treaty it should be revised in the direction.

• The Korean Society of Law and Medicine
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• v.23 no.4
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• pp.103-131
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• 2022

2021, the Supreme Court recognized the foundation of the quasi-indecent act by force by the concept of 'alcohol blackout' although there were multiple situations that it was hard to judge insanity of the victims was evident in the cases with drunken victims. This means the consideration of insanity state due to temporary false memory rather than the total loss of mental capacity from the existing concept of insanity. However, the interpretation of insanity in the criminal law has to be strict and its application could be difficult. In particular, the comparison precedent which is very similar to the subject one was determined not to be the same with the state of the insanity or inability to resist during the sexual relation though the victim had the symptoms of alcohol blackout, denying the quasi-indecent act by force. This argument is determined to be logical remarkably, and insanity and quasi-indecent act by force should be discussed considering the medical review on the alcohol blackout of the victims sufficiently when determining the individual precedents. In addition, the most important point in the sexual crimes is the consent, and there may be possibility of negligence in case that uncertain consent is determined as the consent to continue the following act. Also, in case of uncertain consent or suspicious, universal determination not to follow the act should be able to realized. Therefore, strong evidence is required for criminality, determining that the victim is the state not to be able to do the normal judgment and the minimum willful negligence is existed that the accused uses this. In the subject ruling, the act of the accused has to be clearly punished, however, it is determined to be unreasonable for the punishment with the quasi-indecent act by force under the interpretation of the current regulations.

• Journal of Digital Convergence
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• v.8 no.2
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• pp.147-160
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• 2010

Internet shopping mall business has taken its place as a major form of e-commerce and is evolving constantly. At the same time, disputes of various kinds are also arising in proportion to the evolution. A typical example is when a consumer purchased a product from an internet shopping mall and the seller wants to cancel or withdraw the sales contract saying that he miswrote the price or other important information when posting the product on the internet. It's about the error on the seller's part. Civil Law Chapter 109, legal principles on errors, appears to assume the case of natural declaration of intention. It was observed that legal principles on errors defined by the Civil Law are also applied in internet shopping malls, where declaration of intention is made electronically. In transactions involving internet shopping malls, where the seller's indication and advertisement constitutes an inducement to offer, the seller may cancel a contract concluded by the consumer's offer and the seller's acceptance if the seller finds errors on his part, and adequacy of the cancellation should be judged depending on specific cases. That is, the judgment of the important ground that comprises prerequisites for cancellation and presence of negligence may depend on how much difference there is between the normal price and the posted price on a specific case. Also, considering the cases where negligence was not perceived on the seller's miswriting of the price, the seller may cancel the transaction in a similar situation.

• The Korean Society of Law and Medicine
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• v.20 no.1
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• pp.243-279
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• 2019

During the main ruling in 2018, it is difficult to find a new judiciary, which is understood to be due to a certain degree of jurisprudence established and focusing mainly on contentious disputes within the framework of damages. The cases in which the court's judgment is reversed helped to understand the reason and the judiciary, and it was confirmed that the dispute in the medical lawsuit became more and more intense. Decisions on responsibility restrictions and medical records were also noticeable, with a significant increase in the number of verdicts relating to the doubt about medical records. This is considered to be part of the increasing number of cases in which the parties raise questions about medical records, and several cases were categorized and introduced at this opportunity. We also introduce the case of forced discharge of long-term hospitalized patients and medical fee bill, because it was judicial interest after the Supreme Court ruling that the cost of treatment for the after-effects of medical malpractice can not be claimed to the patient.