• The Journal of the Korean dental association
• /
• v.42 no.9 s.424
• /
• pp.608-609
• /
• 2004

• The Korean Society of Law and Medicine
• /
• v.1 no.1
• /
• pp.95-138
• /
• 2000

• The Korean Society of Law and Medicine
• /
• v.6 no.1
• /
• pp.13-44
• /
• 2005

• The Korean Society of Law and Medicine
• /
• v.16 no.2
• /
• pp.131-157
• /
• 2015

NHIS claimed for damages to doctors that by doing the treatment breaching medical insurance criteria caused by doctors, NHIS paid for medicine cost to pharmacy; as a result, the doctors caused the tort to NHIS. Following consecutive rulings afterwards, NHIS also argued that the medicine cost violating medical law or medical treatment expense paid to medical organizations are both the tort in civil law. NHIS claimed for all the damages, and the Supreme Court confirmed this judgment. However, within our national health insurance system, the subject of insurance payment is NHIS and the subject of medical treatment expense are also NHIS since the treatment expense is also insurance payment by asking the treatment to medical organizations. Further, national health insurance law is not made to control the violation of medical treatment cases; therefore, the breach of medical law cannot be covered by illegality of tort in civil law regarding NHIS. If that is the case, in the case that if the patients are treated according to treatment criteria via the doctors delegated the doctors' permission by Health and Welfare minister, NHIS acquired the benefits to remove the duty to give treatment payment to doctors in civil law; thus, even though the doctors have breached the medical law, NHIS does not have any damages. The fact that supreme court confirmed the ruling that the treatment is the tort in civil law towards NHIS is the judgment not counting the benefits of insurance payment as the subject but only considering the fact that NHIS paid to the doctors and this ruling have gone against the principle under civil code section 750. If the doctors have breached the medical law, the case should be sanctioned by medical law not national health insurance law, and the ruling of supreme court is assumed that they have confused both with the principle of national health insurance law and civil law.

• The Korean Society of Law and Medicine
• /
• v.21 no.1
• /
• pp.33-67
• /
• 2020

The hospitals that are owned by non-medical personnel result when non-medical personnel with resources conspire with newly graduated medical doctors who cannot afford the enormous amount of capital required at the beginning of the establishment of a medical institution. Such hospitals, though they may have met the external requirements as medical institutions, disrupt the medical market as it should be centered by medical personnels, In addition, such hospitals are causing a huge social problem as it is illegally receiving and reducing various benefits such as medical care benefits and subsidies from the government, resulting in a significant financial leak in the national health insurance. The illegality of the opening of a non-medical personnel hospital is so high that it nullifies the contractual arrangement for the establishment, imposes criminal penalties on all persons involved in the establishment under the Korean Medical Law, and imposes administrative sanctions on medical personnel. In case the hospital was aware of the illegality of its opening, but had applied to receive medical care benefits from the National Health Insurance Act and the Medical Care Act, such actions will result in the return of the benefits under the National Health Insurance Act and the Medical Care Assistance Act, subject to the penalty for the crime of fraud, and aggravated punishment for specific economic crimes based on the amount of gain, as well as civil liability for torts. In this study, we will examine the current status of the regulations on the non-medical personnel hospital and present the basis for future legislative directions by looking at the legal regulations and the attitude of the precedents.

• The Korean Society of Law and Medicine
• /
• v.17 no.2
• /
• pp.281-313
• /
• 2016

Our Constitution obliges the state to protect the health of the people, and the Medical Law, which embodied Constitution, sets out in detail the matters related to open the medical institution and one of them is to prohibit the operation of multiple medical institutions In the past, there was a provision stipulating the same purpose. But because the Supreme Court interpreted that several medical institutions could be opened if the medical treatment was not made at the additional medical instition which was opened in the another doctor,s license, multiple medical institutions could be opened and operated. However, some health care providers opened the several medical institutions to another doctor's license just by the excuse of the business management and then did illegal medical cares like the unfair luring of patients, overtreatment, and commition treatment for more profits. So, the health rights of the people came to be infringed on. Accordingly, lawmakers amended the Medical Law for medical personnel not to open and to operate more than one medical institution. As the amended medical law prohibited a medical personnel to open multiple medical institution, some medical personnels insisted that the amended medical law is unconstitutional under which they could not be able to open and operate medical institutions on based on free investment and bring out the benefits of network hospitals. But the regulation to prohibit multiple institutions does not apply only to a medical personnel. Many other experts like lawyer and pharmacist can open only one office under such a restriction. If the regulation goes out of force, the procedure that multiple medical institutions should be opened and operated in the capacity as a medical corporation or a non-profit corporation does not have to be followed. And we should keep in mind that the permission for medical personels to open multiple medical institutions could lead virtually to commercial hospital. If in the nation with a very low rate of public medical service, If only a few medical personnels with capital own many medical institutions and operate commercially them, this could cause a falling-off in quality of medical service, ultimately infringe on the health rights and the life right of the people.

• The Korean Society of Law and Medicine
• /
• v.20 no.3
• /
• pp.143-174
• /
• 2019

Our Constitution obliges the state to protect the health of the people, and the Medical Law, which embodied Constitution, sets out in detail the matters related to open the medical institution, and one of them is to prohibit the operation of multiple medical institutions. By the way, virtually multiple medical institutions could be opened and operated because the Supreme Court had interpreted that several medical institutions could be opened if medical activities were not performed directly at the additional medical institution which was opened under the another doctor's license. However, some health care providers opened the several medical institutions with another doctor's license for the purpose of the maximization of profit, and did illegal medical cares like the unfair luring of patients, over-treatment, and commission treatment. Also, realistic problems such as the infringed health rights have arisen. Accordingly, lawmakers had come to amend the Medical Law to readjust the system of opening for medical institution so that medical personnel could not open or operate more than one medical institution for any reason. For this reason, the Constitutional Court recently declared a constitutional decision through a long period of in-depth deliberation because the constitutional petition and the adjudication on the constitutionality of statutes had been filed on whether Article 33 paragraph 8 of the revised medical law is unconstitutional. The Constitutional Court acknowledged the "justice of purpose" in view of the importance of public medical institutions, of the prevention from seduction of for-profit patients and from over-treatment, and of the fact that health care should not be the object of commercial transactions. Given the risk that medical personnel might be subject to outside capital, the concern that the holder of the medical institution's opening certificate and the actual operator may be separated, the principle that the human body and life should not be just a means, and the current system's inability to identify over-treatment, it also acknowledged the 'minimum infringement'. Furthermore, The Constitutional Court judged it is constitutional in compliance with the principle of restricting fundamental rights, such as 'balance of legal interests'. In this regard, legislative complements are needed in order to effectively prevent the for-profit management and the over-treatment the Constitutional Court is concerned about. In this regard, consumer groups actively support the need for legislation, and health care providers groups also agree on the need for legislation. Therefore, the legislators should respect the recent Constitutional Court's decision and in the near future complete the complementary legislation to reflect the people's interests.

• The Korean Society of Law and Medicine
• /
• v.23 no.4
• /
• pp.133-170
• /
• 2022

Supreme Court 2018Da228486, on July 29, 2021, ruled Article 750 of the Civil Act as the basis for liability for damages due to the violation of the supervisory duty of the responsible mental patient. This judgment recognizes that the legal guardian is liable for tort due to neglect of the responsibility of supervision under Article 750 of the Civil Act because the duty of protection bears the duty of supervision over the mental patient under the law. However, unlike the case of Article 755 Paragraph 1, which explicitly requires a legal obligation to supervise, Article 750 only stipulates general tort liability. Thus, to admit tort liability under Article 750, it is not necessary that the basis of the supervisory duty by the law. In this case, the supervisory duty may also be acknowledged according to customary law or sound reasoning. The duty of supervision of a legal guardian is not a general duty to prevent all consequences of the behavior of a mental patient but a duty within a reasonably limited scope. Therefore, the responsibility of the burden of care should be acknowledged only when the objective circumstances in which it is appropriate to hold the legal guardian for the acts of the mental patient are admitted. Under the Act on the improvement of mental health and the support for welfare services for mental patients, a legal guardian cannot even be granted the supervisory duty to prevent the mental patient from harming others.

• The Korean Society of Law and Medicine
• /
• v.12 no.1
• /
• pp.227-255
• /
• 2011

Recently, many nations said "yes" to human embryonic stem cell research, signing an executive order to permit funding for the research in the mame of achieving health and life of humankind. Human Embryo Research is permitted by our Bioethics & Biosafety Act. But, illegal research cannot be divorced from civil liability since it requires the destruction of eggs of fertilized eggs and personal rights of embryo-creator. After all, though we allow to do research embryo, we should control the capacity of abuse of embryo research for embryo-creator. If research violate the law(Bioethics & Biosafety Act or Civil Law, etc), it comes to a delict by pecuniary loss and non-pecuniary loss. When it comes to pecuniary loss, Human Embryo is not body but special property. Supreme Court maintained a stance that mental suffering is generally deemed as compensable for damages for the loss of property where a person's property right is invaded by a tort or non-performance of obligation. Thus, where mental suffering occurs, which cannot be compensated by recovery of property losses, the situation must be a special circumstance and the injured could claim consolation money for such losses only if the offender knew or would have known of such special circumstances(Supreme Court Decision 96Da31574 delivered on Nov, 26, 1996, etc.). That is to say, Supreme Court regards mental suffering through person's property right invaded by a tort as damages that have arisen through special circumstances. According to Civil law article 393 (2), the injured could claim consolation money for such losses only if only if the offender had foreseen or could have foreseen such circumstances. Also our court will solve through damages for non-pecuniary loss by complementary function of consolation money in that pecuniary loss could be difficult to valuate.

• The Korean Society of Law and Medicine
• /
• v.12 no.1
• /
• pp.11-39
• /
• 2011

[ ${\S}27$ ]Abs. 3 das Gesuntheitsdienstgesetz (the Medical Service Act) in Korea lautet: Niemand in der Absicht, sich oder einem Dritten einen $Verm{\ddot{o}}gensvorteil$ zu verschaffen, der Medizininstitut bzw. dem Mediziner (die Medizinerin) den Patienten vorstellen, ${\ddot{u}}bweweisen$, verleiten oder einen anderen zu dieser Handlung anstiften darf, wie z.B. die Selbstbeteiligung des Patienten nach dem Krankenkassengesetz (the National Health Insurance Act) oder dem Gesetz ${\ddot{u}}ber$ Beistand der ${\ddot{a}}rztlicher$ Betreuung (the Medical Care Assistance Act) skontieren oder befreien, Geld offerieren oder dem Allgemeinheit das Verkehrswesen anbieten usw. Nach dem Wortlaut ist jedoch unklar, ob unter diese Vorschriften der Fall subsumiert werden kann, wenn eine Medizininstitut bzw. ein(e) Mediziner(in) in der Absicht, sich einen $Verm{\ddot{o}}gensvorteil$ zu verschaffen, sich den Patienten verleitet. Nach dem Korean Supreme Court ist eine Medizininstitut bzw. ein(e) Mediziner(in) nur dann das Subjekt der Verleitungshandlung, wenn sie bzw. er ein Mittel gegen fairen oder $ordungsm{\ddot{a}}{\beta}ien$ Medizinmarkt verwendet oder dem Patienten eine ${\ddot{a}}rztlich$ rechtswidrige Behandlung (z.B. einen rechtswidrigen Schwangerschaftsabbruch) verspricht. In diesem Beitrag wird dagegen die Auffassung mittels der teleologischen Reduktion vertritt und argumentiert, dass ein ${\ddot{a}}rztlich$ rechtswidriges Behandlung nach dem Rechtsgut und dem Normzweck unter ${\S}27$ Abs. 3 das Gesuntheitsdienstgesetz nicht subsumiert werden, sondern allein nach eigenem Unrecht bestraft werden kann.