• The Korean Society of Law and Medicine
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• v.9 no.1
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• pp.9-56
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• 2008

The medical practice does not always get a satisfatory result since the disease progress of patients are depended on patients' physical constitution and the doctors cannot control the outcomes about patients' physiological and biological reaction after the treatment. Moreover, the medical practice may bring wrong result fatalistically because of the unpredictablility of life. To demand for compensation of the damage to the doctors about these wrong result, the patient side holds the burden of proof that is between medical practice and demage, and there is damage from doctor's malpractice according to the accepted theory about the fundamental principle of distribution of the burden of proof. This falls not only under the liability of Tort Law, but also liability of Contract Law. However, the patient may be in difficult situation to prove the malpractice of doctors since he or she cannot recognize the facts because he or she was in unconscious while the medical practice was conducted, or they cannot judge precisely even though they recognize the facts. Nevertheless, the lawsuits against medical malpractice are the field that never achieves the equality of arms since the most of the evidence belong to the doctor's side. Hence, to maintain the principle of the equality of arms under the constitution, the theory leads to alleviate the burden of proof that patients hold. However, the doctors cannot be asked for the burden of proof that they conduct medical practice without errors. Because the doctors may experience difficulty to prove their innocence as the patients because of the unique characteristic that medical practices have. Therefore, the methods of the alleviation of the patient's burden of proof should have the equality of arms and the equal opportunity between the patients and the doctors with the evaluation of the justifiable interest from both the patients and the doctors. As the methods of the alleviation of the burden of proof, the alleviation of the demands and the degree of the burden of proof or resolutely the conversion of the burden may be considered. However, Recognizing the exception from general principle with converting the burden of proof is not proper in principle because the doctors may experience difficulty of the proof as the patients may have. If the difficulty of proof can be resolved by alleviating of the demands and the degree of the burden of proof, it is more desirable resolution rather than converting the burden of proof.

• 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.

• Korea Trade Review
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• v.44 no.6
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• pp.135-150
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• 2019

Under the Manufacturing Liability Act, consumers want to be protected from manufacturers by mitigating burden of proof as an important target to be protected. However, due to the complexity of the product, it is very difficult for consumers to prove defects from the manufacturing defect. This situation has led to a major revision of the Manufacturing Liability Act, which mitigates the burden of proof of consumers by applying fruitless liability. The Manufacturing Liability Act is comparable to the U.S., which has strong consumer rights and is protected by the Manufacturing Liability Act. The burden of proof can be regarded as the most necessary content for consumers within the manufacturing product liability law when responding to manufacturing defects. The U.S. intends to provide implications for achieving consumer protection in Korea's Manufacturing Liability Act by imitating the U.S. based on the burden of proof. Case comparison regarding burden of proof can be conducted based on various criteria, including criteria for each product and key features for determining the importance of the manufacturing product liability law. The Act on the Responsibility of Korean Manufacturing Products for the Protection of Consumers was developed based on the assessment criteria, and a remedy was proposed to protect consumers who suffered from manufacturing defects.

• Journal of Arbitration Studies
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• v.32 no.3
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• pp.71-91
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• 2022

The CISG does not stipulate the subject of the burden of proof, and in the arbitral award, the buyer is liable for proof compared to the seller for nonconformity of the product. Without a unified interpretation of the burden of proof of non-contractual goods, confusion of uncertainty may increase if the parties to the sale contract have a dispute due to the trade in goods. It is an important issue to create a unified regulation on this because the courts or arbitration agencies of the Contracting States of the CISG interpret and apply the "seller's obligation to conform to the goods contract" stipulated in this Convention in various ways. In this study, in the case of international Sales of Goods there is a tendency to prefer arbitration through arbitration agencies in the dispute, so the subject of burden of proof is analyzed through arbitration cases applied by CISG as the governing law. Most international commodity trading around the world is regulated by this Convention, but according to the rigid convention regulations, it is analyzed and interpreted through cases where this convention is applied to each country's international arbitration, suggesting the need for a rigid CISG revision.

• The Korean Society of Law and Medicine
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• v.8 no.1
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• pp.179-211
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• 2007

To succeed the claim of medical malpractice litigation, the patient as a plaintiff should establish the medical fault of a physician as a defendant, and the causation between the fault and damages. Because of the extraordinary nature of medical province, however, this application of a legal principles is rigorous with the patient. In addition, given the causation between the validation of physician's fault and damage is not attested, patient is not awarded anything. In order to overcome a difficulty of patient's verification and ensure the right to fair process, it was demonstrated the lightening of burden of proof in medical malpractice litigation and the acceptance of the responsibility for an illegal act in a prescribed range in the absence of the causation between the physician's fault and damage. This paper deals with the judgement of causation and burden of proof in medical malpractice litigation, and the acceptance of responsibility in the absence of the causation between the physician's fault and damage. Also, this study recommends a tendency of our precedent through the comparative case method of ours and Japan.

• The Korean Society of Law and Medicine
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• v.9 no.1
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• pp.129-162
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• 2008

Nowadays it is important for us to resolute medical disputes. Because a high incidence of medical accidents may be brought about according to many chances of treatment in the operation of health insurance and increasing concern of patient health. Patients and medical doctors have plenty of difficulty in uncomfortable treatment circumstances of a high incidence of medical accidents. It is especially desirable that our society should prevent medical accidents and resolute speedy, fairly and rationally the happened medical disputes. Many legislations were suggested to resolute medical dispute. But legal issue points stress only speedy medical dispute resolution procedure and don't compromise fair and professional procedure. Accordingly these legal arguing points had not been accepted by the National Assembly and people. If the speedy resolution of medical dispute was demanded to solve unsafe treatment circumstances, it is necessitated that the legislation containing legal issue points to procedure is enacted. Of course the interest of patients and doctors to legal issue points must be balanced. Because an arguing points to the reversal of proof burden is consisted of the entity judgement in connection with setting the basis of resolution of medical dispute, the legislation to these is checked carefully.

• The Korean Society of Law and Medicine
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• v.12 no.2
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• pp.65-117
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• 2011

This article analyzes the case (2008Da16776) which has the issue how patients have to prove causal relationship when patients claim against pharmaceutical companies alleging that patients were infected with virus due to contaminated blood products. The Supreme court held that: (1) if patients prove that they didn't have symptoms suggesting virus infection before administration of blood products, the virus infection had been confirmed after administration of blood products, and there were significant potential of contamination of the blood products with the virus, the defect in blood products or the negligence of pharmaceutical company in making blood products shall be presumed to cause the infection of the victim. (2) The pharmaceutical companies could reverse the presumption by proving the blood products were not contaminated, but the fact that the victims were treated with the blood products manufactured by other companies or had received blood transfusions is not enough to reverse the presumption. The case is the first decision whether the burden of proof about causal relationship could be reduced in pharmaceutical product liability lawsuit. Hereafter pharmaceutical product liability cases, it would be necessary to reduce the burden of proof about causal relationship in order to make substantive equality between patients and pharmaceutical companies.

• Korean Journal of Logic
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• v.14 no.2
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• pp.77-104
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• 2011

Professor Hasuk Song argues that every argumentum ad ignorantiam, i.e. the argument from ignorance is not fallacious, and social contexts play a crucial role to judge whether the argument is fallacious or not. I generally agree with him, but I think we cannot have help from his position without knowing what those contexts are. In this paper, I argue that the concept of burden of proof is the crucial one to judge whether ad ignorantiam is plausible or not, and then present four criterions who have the burden of proof. There is a burden of proof on one who argues first, who insists the doubtful ones, who has powers, and who thinks that a situation is not dangerous.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.71
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• pp.147-170
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• 2016

International maritime law conventions concerned with cargo liabilities have sought to achieve solutions which will be acceptable to a wide range of states. The Rotterdam Rules was approved by the UN Assembly on 11 December 2008. The Rotterdam Rules are intended to replace The Hague and Hamburg Rules. This paper is comparing The Rotterdam Rules with The Hague and Hamburg Rules for the carrier' liabilities and exceptions in order to find carrier' liability System, the burden of proof and exceptions in the International maritime Rules. The purpose of this paper is considering the carrier's principal recourse for defending himself inmost cargo claims. The first area analyze the transfer of carrier's fundamental Liability system in the International Rules. The second is the matter on the appointment of proof in order to establish liability or to be relieve of liability. And the third is the change of the carrier's possible exclusions from liability in the International maritime Rules. From the result of the said analysis, my paper suggests differences of the exclusions in the Rotterdam Rules comparing with the Hague and Hamburg Rules, and features of the Rotterdam Rules appling exceptions on the basis of the Hague and Hamburg Rules with regard to carrier's liability and burden of proof. The former is the inclusion of three exclusions, the deleted natural fault, and The provision making the carrier responsible for the acts of its servants or agents in the 'fire on the ship' of the Rotterdam Rules. The latter is deleting the principle of overriding obligation related to carrier's obligation of seaworthiness in the Rotterdam Rules, the burden of proof being diverted from the carrier to the carrier and the shipper in the cargo damage caused by two factors(one for which the carrier was liable and the other for which it was excusable) in the new rules.

• The Korean Society of Law and Medicine
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• v.9 no.1
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• pp.57-127
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• 2008

In medical malpractice lawsuits, negligence is generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from a foreseeable risks of harm. Thus, the essence of negligence is a breach of obligations to be attentive, and the breach of obligations to be is negligence. However, whether negligence is or not depends on time, place, litigation forms and the judge since the meaning of negligence is wavering on the basis of abstract and normative judgment. In this thesis, what is medical negligence, a breach of obligations of attention for a doctor in medical malpractice lawsuits, would be it further enacted that doctors have the responsibility to protect the patients as a subordinate duty due to a principle of faith and sincerity besides the main duty for medical contract-performance since the suit is a litigation form to be based on responsibilities of experts, especially doctors, though having factors that are non-contractual as a trait for medical treatment. Further on the concept, when the plaintiff asserts and proves a specific fact from the recent moderation of the burden of proof about medical malpractices, whether the court should find a true bill in medical malpractice actually or not has been discussed.