• Title/Summary/Keyword: judicial interpretation

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The Liability for Unsafe Medical Product and The Preemption Clause of Medical Device Act (의료기기의 결함으로 인한 손해배상책임과 미국 연방법 우선 적용 이론에 관하여)

  • Kim, Jang Han
    • The Korean Society of Law and Medicine
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    • v.15 no.2
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    • pp.63-89
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    • 2014
  • In 1976, the Dalkon Shield-intrauterine device injured several thousand women in U.S.A. which caused the changes of medical deivce regulation. The Medical Device Regulation Act or Medical Device Amendments of 1976 (MDA) was introduce. As part of the process of regulating medical devices, the MDA divides medical devices into three categories. The class II, and III devices which have moderate harm or more can use the section 510 (k), premarket notification process if the manufacturer can establish that its device is "substantially equivalent" to a device that was marketed before 1976. In 21 U.S.C. ${\S}$ 360k(a), MDA introduced a provision which expressly preempts competing state laws or regulations. After that, the judicial debates had began over the proper interpretation and application of Section 360(k) In February 2008, the U.S. Supreme Court ruled in Riegel v. Medtronic that manufacturer approved by the Food and Drug Administration (FDA)'s pre-market approval process are preempted from liability, even when the devices have defective design or lack of labeling. But the Supreme Court ruled in Medtronic Inc. v. Lora Lohr that the manufactures which use the section 510 (k) process cannot be preempted and in Bausch v. Stryker Corp. that manufactures which violated the CGMP standard are also liable to the damage of patient at the state courts. In 2009, the Supreme Court ruled in Wyeth v. Levine that patients harmed by prescription drugs can claim damages in state courts. This may cause a double standard between prescription drugs and medical devices. FDA Preemption is the legal theory in the United States that exempts product manufacturers from tort claims regarding Food and Drug Administration approved products. FDA Preemption has been a highly contentious issue. In general, consumer groups are against it while the FDA and pharmaceutical manufacturers are in favor of it. This issues also influences the theory of product liability of U.S.A. Complete immunity preemption is an issue need to be more declared.

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Discussion by UNCITRAL for Development of International Commercial Conciliation and Arbitration Systems (국제상사조정 및 중재제도 개선에 관한 UNCITRAL 논의동향)

  • Lee, Kang Bin
    • Journal of Arbitration Studies
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    • v.10 no.1
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    • pp.3-25
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    • 2000
  • At its thirty-second session in 1999, the UNCITRAL had before it the requested note entitled "Possible future work in the area of international commercial arbitration." After concluding the discussion on its future work in the area of international commercial arbitration, it was agreed that the priority items for the working group should be conciliation, requirement of written form for the arbitration and enforceability of interim measures of protection. the Commission entrusted the work to the Working Group on Arbitration which held its thirty-second session at Vienna from 20 to 31 March 2000. The Working Group discussed agenda item 3 on the basis of the report of Secretary General entitled "Possible uniform rules on certain issues concerning settlement of commercial disputes : conciliation, interim measures of protection, written form for arbitration agreement." At its thirty-three session in 2000, the UNCITRAL had before it the report of Secretary General on agenda item 3 discussed by the Working Group. The Working Group discussed the issues relating to certain aspects of conciliation proceedings ; (1) Admissibility of certain evidence in subsequent judicial or arbitral proceedings ; (2) Role of conciliatior in arbitration or court proceedings ; (3) Enforceability of settlement agreements reached in conciliation proceedings ; (4) Other possible items for harmonized treatment : a) Admissibility or desirability of conciliation by arbitrators b) Effect of an agreement to conciliate on judicial or arbitral proceedings c) Effect of conciliation on the running of limitation period d) Communication between the conciliator and parties ; disclosure of information e) Role of conciliator. It was generally considered that decisions as to the form of the text to be prepared should be made at a later stage when the substance of prepared solutions would become clearer. However, it was noted that model legislative provisions seemed to be appropriate form for a number of matters proposed to be discussed in the area conciliation. There was general support in the Working Group for the proposition to perpare a legislative regime governing the enforcement of interim measures of protection ordered by arbitral tribunals. It was generally considered that legislative regime should apply to enforcement of interim measures issued in arbitration taking place in State where enforcement was sought as well as outside that State. It was generally observed that there was a need for provisions which conformed to current practice in international trade with regard to requirements of written form for arbitration agreement. The view was adopted by the Working Group that the objective of ensuring a uniform interpretation of the form requirement that responded to the needs of international trade could be achieved by : preparing a model legislative provision clarifying, for avoidance of doubt, the scope of article 7(2) of the UNCITRAL Model Law on International Commercial Arbitration : and adopting a declaration, resolution or statement addressing the interpretation of the New York Convention that would reflect a broad understanding of the form requirement. There was general agreement in the Working Group that, in order to promote the use of electronic commerce for international trade and leave the parties free to agree to the use of arbitration in the electronic commerce sphere, article II(2) of the New York Convention should be interpreted to cover the use of electronic means of communication as defined un article 2 of the Model Law on Electronic Commerce and that it required no amendment to do that. The UNCITRAL may wish to consider to the desirability of preparing uniform provisions on any of those issues concerning conciliation and arbitration proceedings, possibly indicating whether future work should be towards a legislative text or non-legislative text.

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A Study on the Correlation between the Investigation on the Violation Crime of Intellectual Property Rights and the Goods Inspection in Customs Law (관세법상 지식재산권 침해사범 수사와 물품검사와의 상호관계)

  • Ye, Sangkyun
    • International Commerce and Information Review
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    • v.19 no.3
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    • pp.197-214
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    • 2017
  • It requires professional knowledge and much time to judge intellectual property rights infringement. The duties of customs administration are the balance between the propositon of trade facilitation through rapid clearance and the thesis of social security through exact examination. There is a view that the criminal procedure law control is necessary to the goods inspection of clearnce procedure if it is related to crimianl investigation. However, it seems that the customs law does not consider the goods inspection investigation as the investigation under judicial control, but only the mere administrative investigation. It can be said that the inspection of goods by customs law functioning as a clue of investigation is confined to the ordinary goods inspection, including the screening test. Searching for specific articles by specific informaition should be under the control of criminal procedure law because it constitutes the commencement of criminal investigation in criminal cases. This interpretation could be an opportunity as a harmonious operation between the goods inspection of customs clearance and the search and seizure of criminal procedure.

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A Study on the Responsibility Judgment and Mental Disorder of Criminal Psychology (책임능력판단에 관한 범죄심리학적 이론과 정신장애 항변 연구)

  • Rim, Sang-Gon
    • Korean Security Journal
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    • no.10
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    • pp.293-322
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    • 2005
  • The culpability of a person, as determined by due process of law, for any of his actions that are defined as criminal. Determination of such responsibility is a legal function, not a psychiatric one, although a psychiatrist may be called upon to present evidence to the court in order to aid the judge or jury in reaching a decision as to responsibility. Determination of responsibility varies with the laws of the state in which the accused is being tried, but in general all states base their laws on three famous judicial decisions concerning criminal responsibility. 1. the M'Naghten(McNaughton) rule(a. to establish such a defense the accused, at the time the act was committed, must be shown to have been laboring under such defect of reason as not to know the nature and quality of the act he was doing, b. if he did know it, he did or know that what he was doing was wrong). 2. the irresistible impulse test. 3. the Durham decision. Under the Durham test, however, the psychiatrist may give any relevant testmony concerning the mental illness at issue. The psychological and behavioral appearance of a person, in clinical psychiatry this term is commonly used to refer to the results of the mental examination of a patient. The written report of the mental status usually contains specific references to the following areas: I. Attitude and General Behavior (1)General health and appearance. (2)General habits of dress. (3)Personal habits. (4)General mood. (5)Use of leisure time. (6)Degree of sociability. (7)Speech. II. Attitude and Behavior during interview (1)Co-operativeness. (2)Poise. (3)Facial expression. (4)Motor activity. (5)Mental activity. (6)Emotional reactions. (7)Trend of thought. III. Sensorium, mental grasp, and capacity (1)Orientation. (2)Memory and retention. (3)Estimate of intelligence. (4)Abstraction ability. (5)Tests of absurdity, interpretation of proverbs. (6)Judgment.

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Review of the Need for Conversion of Proving Responsibility in Hospital Infection and the Duty of Safety Management as the Basis of it (병원감염 사건에서 사실상 증명책임 전환의 필용성 및 그 근거로서 안전배려의무에 관한 검토)

  • Yoo, Hyun Jung
    • 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.

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An Analysis of Judicial Precedents for Progress Payment to Subcontractor - Focused on Public Construction Projects - (하도급대금 직접지급에 대한 쟁점판례 분석 - 공공 건설공사를 중심으로 -)

  • Lee, Dong-Hoon;Kim, Sun-Kuk;Song, Yong-Sik;Kim, Baek-Yong;Lee, Won-Suk
    • Journal of the Korea Institute of Building Construction
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    • v.10 no.1
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    • pp.111-120
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    • 2010
  • The public construction industry in Korea involves a variety of stakeholders, encompassing multiple layers of contractual relationships that crisscross between the State as project client and the contractors, as well as subcontractors. In such a hierarchical landscape, managerial crises of contractors involving bankruptcy or insolvency can result in unexpected damages for both clients and subcontractors. Accordingly, the applicable legal framework requires project clients to act as patrons in relation to making payments to subcontractors, and stipulates provisions pertaining to direct payments to subcontractors in order to promote the balanced development of the national economy in terms of the public interest by protecting small and medium-sized businesses working as subcontractors for large businesses. However, the relevant legal documents provide for different payment criteria and procedures from document to document, and leave room for variations in the interpretation and construction of applicable provisions, which leads to disputes and discrepancies in court rulings. For this reason, it is necessary not only to compare and analyze statutory provisions pertaining to direct payment to subcontractors, but also to review issues of contention in actual cases. This study aims to analyze issues in cases involving payment to subcontractors from the perspective of the project client overseeing and supervising the construction business. The conclusions from such an analysis will help to effectively resolve subsequent cases of a similar nature by suggesting a strategy to improve the relevant statutory provisions pertaining to direct payment to subcontractors.

Application of the Terms and Conditions of English Law Related to the Duty of Utmost Good Faith under Marine Insurance Contract: Korean Supreme Court Decision 2018.10.25, Docket No.2017Da272103

  • Pak, Jee-Moon
    • Journal of Korea Trade
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    • v.24 no.6
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    • pp.19-36
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    • 2020
  • Purpose - This paper analyzes how to interpret the legal view of the precedents to the UK Insurance Act 2015, comparing it to the UK Marine Insurance Act (MIA) 1906 with a focus on the relationship between the duty of uberrimae fidei and the duty of disclosure. Furthermore, this study focuses on the judgment of the Korean Supreme Court in a case, that examined whether the legal nature of the duty of disclosure or duty of uberrimae fidei in insurance law can be considered as a matter related to the insurer's liability when the applicable terms of English law are incorporated under the insurance contract. Design/methodology - This paper belongs to the field of explanatory legal study, which aims to explain and test whether the choice of law is linked to the conditions that occur in the reality of judicial practice. The approach that is used toward this problem is the legal analytical normative approach. The juridical approach involves studying and examining theories, concepts, legal doctrines and legislation that are related to the problem. Findings - Regarding the requirements and effects of breach of the duty of disclosure, if English law and the Korean Commercial Act are handled differently from each other and Korean law is recognized as the applicable law outside of the insurer's liability, it may be whether the insurer's immunity under English law is contrary to s.633 of the Korean Commercial Act. In considering the breach of the duty of disclosure as a matter of the insurer's liability, even if English law is applied as a governing law, the question of how to interpret the agreement of the governing law in this case may also be raised in the interpretation of Korean International Private Law in relation to the applicable law that applies to the rest of the matter, excluding the matters of liability. Originality/value - According to the Korean Supreme Court judgement under the governing law of the MIA 1906, the basis for recognizing the assured's pre-and post-contractual duty of disclosure is separate, and the only important matters to be notified by the assured after the conclusion of the insurance contract are those that are "relevant" and "material circumstances" that are "relevant" to the matter in question after the conclusion of the insurance contract.

Recent Trends in Compensation for Mental Anguish of Airline Passengers (항공여객의 정신적 손해배상에 관한 최근 동향 - 미국 연방법원 판례를 중심으로 -)

  • Lee, Chang-Jae
    • The Korean Journal of Air & Space Law and Policy
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    • v.35 no.1
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    • pp.33-62
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    • 2020
  • The current air transportation industry is facing a lot of changes not only in the quantitative growth of the market, but also in the legal aspects. For many years, the Warsaw Convention has contributed to the uniform discipline of civil carriers' legal liabilities arising from international aviation accident and has fulfilled the duties of legal guardians for the development of the air transport industry. In the process, however, the consumer interests of the air transport industry did not have much protection compared to other industries. In response, the Montreal Convention has effected for protecting the interests of aviation consumers, and there are numerous legal changes around the world to protect aviation consumers like passengers. The mental damages of airline passengers arising from the accident can also be understood as part of the protection of air consumers. Considering that the US Federal Court has dealt with the recognition of mental damages for air passengers since the early 1990s. However, Korean judicial precedent still excludes mental anguishes from the scope of damage compensation. From this point of view, it is considered academically meaningful to analyze the latest case of the US federal court. Recently, the United States Court of Appeal for the Sixth Circuit in Doe v Etihad Airways applied a different interpretation against the traditional opinion: passengers could not recover for mental distress unless that mental distress resulted from a bodily injury sustained in an airplane accident. The background of the court's conclusions can be explained in many ways, among other things, unlike the Warsaw Convention the new international rule, Montreal Convention is recognizing the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution.

Analysis and Prospect of North Korean Legislation System - Focused on the 'Legislation Law' of North Korea - (북한의 법제정(입법) 체계의 분석 및 전망 - '법제정법'을 중심으로 -)

  • Park, Jeong-Won
    • Journal of Legislation Research
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    • no.53
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    • pp.9-59
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    • 2017
  • Recently, the aspect of regulating the legal system in North Korea has increased in quantity and shows the improvement of the evaluation of the lack of systematic consistency in the past. North Korean legislation has been negatively criticized for its lack of function and role of the legislative body and ambiguity of the legal system. In particular, the newly adopted "Legislation Law" in relation to the revision of the legislative system of North Korea contains important and clear contents to understand the legislative system and procedures of North Korea. The contents of the "Legislation Law" can be found a glimpse of the process by which the framework and procedures of the North Korean legislative process are organized more systematically. The North Korean legislation provides legal and institutional grounds for promoting internal and external policies under the Kim jong-un's regime. North Korea is focused on the nuclear issue, so there is limited information on other areas. In light of this, the purpose of this study is to examine the legislative theory and system of North Korea, and outline the theoretical basis of North Korea's emphasis on strengthening socialist judicial life, the socialist legal system, and the state theory of socialist rule of law. In addition, it can be analysed the content of actual legal reform in light of North Korea's legislative theory and system. In the study, it will examine the legislative system of North Korea and its characteristics by examining the legislative process and legislative process of North Korea. Moreover, it can be compared the contents of the Legislative Law of China with the legislative process of the DPRK and examine its characteristics. We will look at the challenges to the legislative system in North Korea and look into the future direction of the legislation. Kim jong-un's announcement of the revised legislation until recently through the publication of the 2016 Supplementary Codes is an important data for the current state of the North Korean legislation. This is because it confirms the content of the laws and regulations already known through "Democratic Chosun(a newspaper issued by North Korea Cabinet)'s statutory interpretation." However, in the case of laws and regulations related to the North Korean political system, it is still a remnant of the lagging legislation that the announcement is delayed, or it remains undisclosed or confidential. North Korean laws are developed and changed according to the changes of the times. In particular, the contents of the maintenance of foreign investment and the foreign economic law system and related internal legal system are found to change in accordance with the development direction of the socioeconomic system. If the direction of Kim jong-un's regime is to be expanded to the path of reform and opening up in the economic sector, the revision of the related laws and regulations will accelerate. Securing the transparency and objectivity of the North Korean legislative process and procedures will help to broaden the understanding of the inter-Korean legal system and to seek institutional measures for inter-Korean integration. In the future, in-depth research on the North Korean legal system will be emphasized as a basis for ultimately forming a unified Korea's legal system.