• The Korean Society of Law and Medicine
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• v.11 no.1
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• pp.243-270
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• 2010

Under the existing law, an act included in medical practice by medical personnel seems to be irrelevant to whether the act concerned in the "Life World" is in the category of medical practice. In spite of the act having been done according to the custom for a long time, and generally done by individuals in the "Life World", these kinds of acts have been banned by law, because if these acts were done by the general individuals, it would be considered as harmful behavior to human life and body. And it is not sure that individuals know such a ban or notification. This cause a "Mistake of Law". Also it is happened if someone knows the existence of law but believes that his/her act is not included. For treating the problem of "Mistake of Law" of unlicensed medical act, in this study I inquired thoroughly into the category and regulation of unlicensed medical act, uncertainty of the Medical Services Law the first Section of Article 27, the prohibition of unlicensed medical act. The "Composition Condition" of the first Section of Article 27 of the Medical Services Law is not certain, it doesn't meet the "Doctrine of Clearance", and it cause the "Mistake of Law". Also it doesn't meet standardization of constitutional state. An exceptional decision of Pusan District Court, the debate about unlicensed medical practice, constitutional decision on unlicensed medical practice of the Constitutional Court of Republic of Korea and point of view of support of regulation. Also I examined the problem of "Mistake of Law" that the regulation of unlicensed medical practice has. I tried to solve uncertainty of "Composition Condition" and proposed a direction of regulation for solving the "Mistake of Law" and the use of existing law.

• Journal of Digital Convergence
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• v.14 no.6
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• pp.51-60
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• 2016

The modern state has always followed a variety of risks in the industrialization and informatization trends in the development of science and technology. Under such an environment, A matter of State compensation should take into consideration a variety of values such as harmony relief victims' rights in accordance with the principles of the rule of law, suppression of illegal acts of public servants, ensuring stable performance of official duties, the national treasury stability. As the state takes responsibility for an act of a public servant in a modern constitutional state, there may be a doubt on that the state takes responsibility only when there is a deliberation or a mistake. According to the theory of the self-responsibility, which suits the Constitution, the principle of liability with mistake on the State Compensation Law shall be excluded. I agree to the opinion that a subjective responsibility prerequisite such as a deliberation or a mistake is not required in relation to the liability of reparation on the State Compensation Law. Therefore, it is needed to convert the principle of state liability of reparation from the principle of liability with mistake to the principle of liability without mistake through a fundamental revision of the State Compensation Law.

• The Korean Society of Law and Medicine
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• v.11 no.1
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• pp.59-84
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• 2010

Medical practice is characterized by various physiological response and uncapacity of prediction, therefore when medical accident occur it's hard to prove medical professionals' mistake. Though medical accident by medical professionals' mistake will be compensated anyhow, about irresistible medical accidents, no one should be not bound to compensate, victims get into very difficult situation. So, the nation don't negligent irresistible medical accidents but compensate anyway. As in the past, to the legal principle's constitution of irresistible medical accidents, theory of liability without fault was adapted, and it was said this theory was illogical in theory of liability with fault. But the subject of compensation to irresistible medical accidents is nation, nation don't participate in medical treatment therefore there is no room to occur mistake. And it is not reasonable to regard medical agency as a truster of public service, to cast to it responsibility of medical accidents. The problem of compensation to irresistible medical accidents is understood under the theory of social compensation. Social compensation is consisted of compensation to sacrifice and contribution to nation and society and compensation to sacrifice revealed under danger, the compensation to irresistible medical accidents belongs to the latter. This is near to concept of relief, is applied to national compensation system supplementarily, and compensation have no option but to compensate minimum. And there are not relation between national compensation system of irresistible medical accidents and proof liability transposition and theory of liability with out fault, merely in side of sharing responsibility burden between medical treater and victim, it is reasonable to discuss transportation of proof liability and compulsive liability insurance together.

• Journal of Korea Trade
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• v.26 no.7
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• pp.93-108
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• 2022

Purpose - This paper examines the admissibility of restitution as the legal consequence where a contract is frustrated under the Law of Reform (Frustrated Contracts) Act 1943 in comparison with Korean Civil Code (KCC). In order to provide practical guidelines and advice regarding choice of and application of law for contracting parties in international trade, the paper comparatively evaluates requirements and the scope of restitution under the Act 1943 and KCC. Design/methodology - This paper executes a comparative study to analyze whether the parties may claim restitution of money paid or non-money benefit obtained before or after the time of discharge under English law and KCC. To achieve the purpose, it focuses on the identifying characteristics of each statute, thereby providing guidelines to overcome difficulties in legal application and interpretation as to restitution as the consequence of frustration. Findings - Under English law, the benefit may be restituted according to Art 1943 or the common law rule, mistake of fact or law. Under the KCC, restitution is considered based on the principle of the obligation to recover the original obtained regardless of the time when the benefit is conferred. Whilst Act 1943 does not require careful analysis of the grounds of restitution, requirements to justify restitution according to the principle of unjust enrichment, mistake of fact or law, and the KCC should be met. Meanwhile, the KCC may provide more opportunities to award restitution because it does not require the burden of proof related to the defendant's good faith, unlike the principle of unjust enrichment. Originality/value - Where the contract is frustrated by the effect of COVID-19, one legal issue is a consequence of frustration. Therefore, this paper analyzes requirements and the scope of restitution under English law as compared with the KCC in a timely manner. It provides contracting parties with practical guidelines and advice to reduce unpredictability when they choose the governing law in a contract.

• Proceedings of the Safety Management and Science Conference
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• 2009.11a
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• pp.495-505
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• 2009

Unpaid Family Worker is blind area of industry safety. Danger of industrial accident is some high but because was excepted in industrial accident compensation insurance application. In most case, because paltry Unpaid Family Worker is no opportunity to take safety education to prevent industrial accidents and there are few safety facility and safety equipment, etc., among business, it may be said that probability to suffer industrial accidents on a trifling mistake or carelessness is higher than general worker of business. Consider such difficult actuality of Unpaid Family Worker and our country must give these benefit of industrial accident compensation insurance application, as opened the door of insurance application in recognition of worker position by "Industrial accident compensation insurance Law" to middle·smaller enterprise's business proprietor or special form labor employees.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.153-178
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• 2016

The United Nations Convention on the International Sale of Goods(CISG) leaves a number of aspects concerning commercial sales untouched. In particular, it is not concerned with the validity of the contract or of any of its provisions or of any usage. And UNIDROIT don't deal with all-round validity in International Commercial Contract. Especially, UNIDROIT includes declaration of intention department. The UNIDROIT contains the chapter 3 on the "validity" in terms of the defects of consent such as mistake, fraud, and threat as well as "gross disparity". Notwithstanding these provisions, the Principles did not deal with invalidity arising from the lack of capacity or authority, or immorality or illegality. On the other hand, there are arguments that the corresponding provisions of the Principles of International Commercial Contracts(UNIDROIT Principles; PICC). Therefore, Validity in International Commercial Contract is delegate by Each Country Law. So Trade practicer should know full well about Each Country Law Position. People(human, corporation, company) of position Trade practice classify each country civil law relation to validity of commercial contract. This paper is to examine the Validity of UNIDROIT Principles. Also this paper analyses comparison on each country position relation to capacity of right, capacity to act, illegality of contract, declaration of intention. In conclusion, This paper expect that people of trade practice makes use of analysis knowledge.

• The Korean Society of Law and Medicine
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• v.15 no.2
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• pp.123-163
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• 2014

As results of analyzing judicial precedents about infection in hospitals in connection with mistakes and causality in medical litigations shows that the Mitigation of Law Principles To Prove responsibility in medical litigation has not been able to play its role compared to its intended purposes. And Major sentiment from those judgments is that a mistake can't be proved only by the fact that certain infection in hospital occurred in connection with hospital infection. Therefore, the number of indirect facts to deny estimation is overwhelmingly high. Like this, especially for hospital infection which is difficult to prove indirect facts themselves to estimate mistake, major sentiment from those judgments have a problem that impute sharing of losses caused by hospital infection to patient. In accordance with the Principles of equitable and proper sharing of losses, it's required to prepare legal interpretation and theoretical methods to largely mitigate patient's responsibility to prove medical mistakes compared to other medical litigations in connection with existing Mitigation of Law Principles To Prove responsibility and conventional theory of estimation. In connection with this, the results of review that duty of safety management in hospital infection cases can be the base of conversion of proving responsibility, the duty that prevent hospital infection, corresponding the duty of safety management in hospital infection is not conventional duty of safety management based on duty of good faith but secondary obligation of medical contract. The breach of duty preventing hospital infection is the violation of medical contract, but there is no logical necessity that convert proving responsibility from the obligation of contract itself. Therefore, the duty of preventing hospital infection from the obligation of medical contract, corresponding the duty of safety management in hospital infection cases cannot be the base of conversion of proving responsibility alone. But, it's still required to conversion of proving responsibility in hospital infection, we need further studies on cases of Germany which applies legal estimation of proving responsibilities in hospital infection.

• 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.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.54
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• pp.81-98
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• 2012

The Incoterms(R) 2010 rules take account of the continued spread of customs-free zones, the increased use of electronic communications in business transactions, heightened concern about security in the movement of goods and changes in transport practices. And the Guide to Incoterms(R) 2010 is the authoritative companion work to Incoterms(R) 2010, the ICC rules on the use of domestic and international trade terms. The guide responds to business needs for a better understanding of these ICC rules that are used in countless commercial transactions every day. But, contrary to the previous guidebook, there is many errors and mistake in the Guide to Incoterms(R) 2010 which should be amended. The purpose of this paper is to point out the problems and amend the errors and unify the expression in guidebook.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.16
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• pp.331-359
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• 2001

Uniform Electronic Transactions Act (1999) Drafted by the National Conference of Commissioners on Uniform State Laws. The Act allows the use of electronic records and electronic signatures in any transaction, except transactions subject to the Uniform Commercial Code. The fundamental purpose of this act is to remove perceived barriers to electronic commerce. The Act's a procedural statute. It does not mandate either electronic signatures or records, but provides a means to effectuate transactions when they are used. The primary objective is to establish the legal equivalence of electronic records and signatures with paper writings and manually-signed signatures. With regard to the general scope of the Act, the Act's coverage is inherently limited by the definition of "transaction." The Act does not apply to all writings and signatures, but only to electronic records and signatures relating to a transaction, defined as those interactions between people relating to business, commercial and governmental affairs. The exclusion of specific Articles of the Uniform Commercial Code reflects the recognition that, particularly in the case of Articles 5, 8 and revised Article 9, electronic transactions were addressed in the specific contexts of those revision processes. In the context of Articles 2 and 2A the UETA provides the vehicle for assuring that such transactions may be accomplished and effected via an electronic medium. At such time as Articles 2 and 2A are revised the extent of coverage in those Articles(Acts) may make application of this Act as a gap-filling law desirable. Similar considerations apply to the recently promulgated Uniform Computer Information Transactions Act (UCITA). Another fundamental premise of the Act is that it be minimalist and procedural. The general efficacy of existing law, in an electronic context, so long as biases and barriers to the medium are removed, confirms this approach. The Act defers to existing substantive law. Specific areas of deference to other law in this Act include: i) the meaning and effect of "sign" under existing law, ii) the method and manner of displaying, transmitting and formatting information in section 8, iii) rules of attribution in section 9, and iv) the law of mistake in section 10.