• Journal of Legislation Research
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• no.44
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• pp.435-464
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• 2013

의료민사소송은 그동안 의료행위가 지니고 있는 전문성, 밀실성, 폐쇄성 등의 여러 가지의 특수성으로 인하여 소송이 장기화되고 경제적 비용이 상당하게 소모되었다. 또한 법원의 판결이 이루어지더라도 당사자들이 이를 신뢰하지 못하는 등의 이유로 신속성과 공정성에 문제점이 지적되었다. 이 때문에 소송 대체적 분쟁해결제도로서 의료사고 피해구제 및 의료분쟁 조정 등에 관한 법률상의 의료분쟁조정 및 중재 절차가 탄생하게 되었다. 그러나 의료분쟁조정법 제27조 제8항에서 피신청인이 14일 동안 의사를 표명하지 않는 경우 거부의사로 간주되고, 이 경우 한국의료분쟁조정중재원장이 각하결정을 하여야 한다고 규율함으로써, 조정의 개시 조차 순탄치 않은 것이 현실이다. 본고에서는 우리나라 의료분쟁의 최근 현황을 확인해 본 후, 의료분쟁조정법상 조정의 신청에 관한 조문인 제27조에 대한 입법안을 비교 점검한 후 다른 ADR 관련 법률이나 민사소송법상의 조문과 비교하여 불합리한 점이 있는지를 검토하고, 동조의 개선방안을 제시하고자 한다. 또한 2013. 4. 8.부터 시행이 되고 있는 불가항력적 산과 사고에 대한 무과실보상제도와 관련하여 동조가 미치는 영향 등에 대해서도 논의하고자 한다.

• The Korean Society of Law and Medicine
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• v.17 no.1
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• pp.139-168
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• 2016

Two alternative dispute resolutions for medical dispute have been operated under the States of German Medical Associations. The first is the medical mediation committee of North german area, the other is the advisory committee on medical errors in North-Rhine area. The former has focused on the mediation itself, the latter commission has focused on the expert review itself whether the physician has maintained reasonable care in diagnosis and treatment. Even though these organizations have maintained under the medical associations, to maintain the neutrality on legal and medical decision, the North German mediation committee is composed of a lawyer and a medicine doctor respectively and North-Rhine advisory committee has a lawyer chair person and four medicine doctors. The main difference of Korean Medical Dispute Mediation Agency in respect from the german system is that expert review is subordinated to the mediation process. The neutrality of expert review is suspected from the medicine doctors. The neytrality and the efficiency should be improved to treat the medical disputes. To do so, lawyer and medicine doctor work together in mediation process and lawyer should manage the expert review process but not involved. Mediation process and expert review should be checked and balanced, and they could be developed as a separated process itself.

• The Korean Society of Law and Medicine
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• v.17 no.1
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• pp.169-208
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• 2016

"Act on Remedies for Injuries from Medical Malpractive and Mediation of Medical Disputes)" has been enacted to solve medical dispute. In addition, mediation and arbitration procedures have started since April 8th, 2012 from the Establishment of Korea Medical Dispute Mediation and Arbitration Agency. The average initiation rate of mediation for the past three years turned out to be 43%. Hereupon, Establishment of Korea Medical Dispute Mediation and Arbitration Agency has created a solution for automatic initiation if relevant to particular conditions to improve initiation rate of mediation procedures and passed it through the Assembly plenary session in May, 2016 and promulgated on the 30th of the same month. However, even if mediation procedure initiation rate is increased, there is no guarantee for mediation establishment rate to be improved according to current law. If Establishment of Korea Medical Dispute Mediation and Arbitration Agency intends to increase aforementioned value, automatic initiation is not the only solution. Instead, it seems to be a major assignment to identify fundamental reasons for why major health care facilities have not participated in it and to restore reliability on them. In addition, among crimes specified on the Article 268 of Criminal Act in the Article $51^*$ of "Act on Remedies for Injuries from Medical Malpractive and Mediation of Medical Disputes)", revision must be made so that the clause of clue and death by occupational or gross negligence is applied. Furthremore, it is suggested to supplement previously insufficient policies with the operation so that mediation procedures created by Establishment of Korea Medical Dispute Mediation and Arbitration Agency are stably settled in the perspective of medical institutions including the establishment of new conditions for medical institutions founders or health and medical service personnel to claim the proxy payment for damage.

• The Korean Society of Law and Medicine
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• v.5 no.2
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• pp.391-412
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• 2004

• The Korean Society of Law and Medicine
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• v.16 no.1
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• pp.255-288
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• 2015

It is desirable to prevent medical accidents because they bring about irretrievable outcomes to patients, as they are directly related to each patient's life, and health. However, once medical accidents occur, it is appropriate to resolve them quickly without conflict before the feelings of directly involved people are intensely confronted with each other. Korea Consumer Agency carries out medical dispute mediation to address such disputes quickly, fairly, and efficiently, and so does Korea Medical Dispute Mediation and Arbitration Agency. Although there has been constant debate on a merge between the two agencies because of duplicated work and consequent inefficiency, it is desirable to maintain the two agencies to ensure consumers' options and to promote the mutual development of the agencies through competition. Therefore, there should be legal and systematical support for Korea Consumer Agency to have fair competition with Korea Medical Dispute Mediation and Arbitration Agency. This is not for Korea Consumer Agency, but ultimately for consumers.

• Journal of Arbitration Studies
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• v.30 no.1
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• pp.185-198
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• 2020

In the event of a medical conflict in South Korea, civil lawsuits can be very complicated, time-consuming, and costly. Under the Medical Conflict Conciliation Act, the mediation system has expanded its function to coordinate disputes between individuals and medical institutions in a more efficient manner prior to litigation. Currently, conflict mediation organizations and legal systems are established in each sector, and the Healthcare Dispute Settlement Commission will also play an important role in the public sector. In this study, the characteristics of the evaluation system of the Korea Institute of Medical Conflict Arbitration are examined; and, by looking at the case of medical examinations, it is proposed to show the mediation system and the manner and role of the examinations. Medical expertise is a very important area of the qualitative standards and expertise of participants because the participants must play a role in medical consultation and appraisal in connection with medical experts.

• The Korean Society of Law and Medicine
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• v.15 no.2
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• pp.91-122
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• 2014

For a variety of reasons, the number of medical disputes is continuously rising. Due to the intrinsic qualities of medical treatments, one would find it more apt to subject medical disputes to general conflict resolution procedures rather than to once-for-all decisions under legal suits. To address the increasing medical disputes with greater professionalism and efficiency, the Medical Disputes Mediation Act was enacted and a medical dispute mediation system put in place, while drawbacks have been blamed to both. The current mediation procedures require the respondent's agreement as a disclosure requirement. A reasonable improvement to this would be to amend the regulation of agreement supposition, or to enforce procedural participation only to public health facilities managed by the national or regional government. Furthermore, small claims cases of 20 million KRW or less in claim may be considered for conciliation-prepositive principle. The concentration on small claim medical disputes is a phenomenon that can be addressed by carrying out maximum authentication commissions or similar measures, one of the solutions by enhancing the public trust in the Korea Medical Dispute Mediation and Arbitration Agency. The proper management of medical authentication teams is one way to address the existing problems in the authentication system. For this, the number of team members shall be increased under more flexible authentication procedures. All indemnity resources for medical accidents of force majeure must be borne by the Government, for it is the body principally responsible for social compensation. Placing this cost on the establisher of the subject medical facility holds the possibility of violating fundamental rights. While the costs for subrogation payment system for damages may be borne by the healthcare facility establisher, a deposit-based system must be created for cases in which the facility shuts down, without holding the responsibility for accident cause. Such change to a deposit-based system will evade the controversies of unconstitutionality, etc.

• The Korean Society of Law and Medicine
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• v.17 no.1
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• pp.107-135
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• 2016

Medical tour can be said to be a new high added-value tour industry of 21st century. The development of varied and distinguished medical tour products by each country will further vitalize the medical tour industry. As the interest in such medical tour increases, it is necessary to analyze the demand and interests of tourists accurately and prepare medical tour products to be provided in order to develop and promote medical tour products. The government considers the medical tour industry as an industry with high expected effects in job creation through promotion of experts in global healthcare industry and national economy development through high added-value creation, and has expanded aid policies in medical tour field with improvement of medical tour immigration system, one-stop service system for medical tourists, and medical tour labor force promotion system. Nevertheless, there are disputes between foreign patients and medical tour inviting businesses, along with medical accident disputes between foreign patients and medical staff and disputes with those working in the tourism industry. This article reviews the types of disputes occurring around the inviting businesses related to medical tours and tried to review the resolutions. Through this, it was found that medical tour inviting businesses have the responsibility to connect the mediated benefits and risks and also the responsibility to process the tasks. Thus, in case dispute occurs due to passive actions from establishing agency agreement to active mediation results, it is difficult to escape the liabilities. Also, in a medical tour agency contract, the inviting business must be aware that it bears the responsibility to explain and advise the details on benefits and risks to foreign patients. The "Guide to arbitration system for resolution of medical disputes with foreign patients" by Korea Health Industry Development Institute Act presents a method to resolve disputes according to the [laws on medical accident damage relief and medical dispute arbitration] in case a dispute due to medical accidents occurs to foreign patients when the foreign patients prepare diagnosis agreement, Whether such method is sufficient to protect foreign patients, however, is thought to require discussions from more diverse perspectives. In order to vitalize medical tourism, the development of diverse products is also important, but the countermeasures against related disputes should also be prepared. Such is expected to contribute to a greater advancement based on trust of foreign medical tourists alongside excellent medical technologies.

• The Korean Society of Law and Medicine
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• v.19 no.2
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• pp.139-171
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• 2018

The 「Act on Remedies for Injuries from Medical Malpractice and Mediation of Medical Disputes」(hereinafter referred to as 'the Act on Mediation of Medical Disputes') provides that the state should compensate the victims of medical accidents occurred irresistibly in childbirth despite that health and medical service personnel fulfilled their duty of care for their damage within the range of its budget(Article 46 of the Act on Mediation of Medical Disputes). Given that victims of medical accidents could expect demage recovery only through lawsuits thus far, this act can be said to be a groundbreaking act. However, However, as 30% of the costs for such medical accident compensation projects are borne by those who have records of childbirth among the founders of health and medical institutions (Article 21 of the Act on Mediation of Medical Disputes), there has been a question about whether doctors are held responsible despite that the accidents such as the deaths of mothers and newborn babies occurred irresistibly without doctors' fault. However, recently, the Constitutional Court ruled that 'the range of founders of health and medical institutions' and 'share ratios of finances for compensation' in Article 46 (3) of the Act on Mediation of Medical Disputes' related to the imposition of the share of costs are institutional (Constitutional Court ruling dated April 26, 2018, 2015Heonga13, hereinafter referred to as 'the ruling in the case'). Although the ruling in the case was made based on only the principle of statutory reservation and the principle of ban on comprehensive authorization, this paper added a practical judgment. This paper proved that the share of costs in this case has the nature of burden charges in pursuit of study and does not infringe on the property rights of the founders of health medical institutions even in light of the principle of proportionality because there is a legitimate reason for imposing the burden charge. The imposition of the share of costs in the system for compensation for medical accidents occurred irresistibly is against the principle of liability with fault in part. However, the medical accident compensation projects are rational a national policy for the victims of medical accidents and the medical world clearly gains some benefits from the effect to terminate medical disputes. The expansion of finances for compensation through the payments of the share of costs will reduce the suffering and misunderstanding of victims of medical accidents occurred in the process of childbirth and will be very helpful to the construction of stable treatment environments of medical workers by quickly establishing the medical accident compensation projects as such.

• 대한예방의학회:학술대회논문집
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• 2000.10a
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• pp.195-196
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• 2000