• The Korean Society of Law and Medicine
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• v.10 no.2
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• pp.183-201
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• 2009

Im Allgemeinen auch psychische Patienten k$\ddot{o}$nnen sich daruber selbst entscheiden, $\ddot{a}$rztliche Behandlung zu nehmen und ins Krankenhaus aufgenommen zu werden. Im S$\ddot{u}$dkorea bei der zwangsweisen Unterbringung wird kein KBGB des privatlichen Rechts, sondern Gesetz $\ddot{u}$ber psychisch Gesundheitspflege des $\ddot{o}$ffentlichen Rechts vorz$\ddot{u}$glich verwandt. Aber das noch kann ein selbst Bestimmungsrecht von der psychischen Patient verletzen. Im Deutschland regelt BGB $\S$ 1906 Zwangsunterbringung der psychische Patienten, die Gef$\ddot{a}$hr des Selbstmord oder der Eigengef$\ddot{a}$hrdung haben. Au$\ss$erdemhat jedes Land eigen Gesetz $\ddot{u}$ber psychischen Kranken, das $\ddot{o}$ffentliche Vorschrift f$\ddot{u}$r Zwangsunterbringung regelt. Im Fall der Zwangsunterbringung im Deutschland BGB $\S$ 1906 wird prim$\ddot{a}$rer als $\ddot{o}$ffentlich Rechts verwandt, um die Selbstbestimmungsrecht der Patienten zu unterstutzen. Auch im Korea KBGB (koreanisches B$\ddot{u}$rgerliches Gesetzbuch) Ver$\ddot{a}$nderungen f$\ddot{u}$r die Einf$\ddot{u}$hrung des Betreuungsrechts, die sich mit der Zwangsunterbringung befassen, sollten diskutiert werden, damit die Selbstbestimmung sch$\ddot{a}$tzen.

• The Korean Society of Law and Medicine
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• v.17 no.2
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• pp.145-173
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• 2016

A patient's Right to Self-Determination or his/her Right of Autonomy in the Republic of Korea has traditionally been understood as being composed of two elements. The first, is the patient's Right to Know as it pertains to the physician's Duty to Report [the Medical Situation] to the patient; the second, is the patient's Right to Consent and Right of Refusal as it pertains to the physician's Duty to Inform [for Patient's Consent]. The legal and ethical positions pertaining to the patient's autonomous decision, particularly those in the interest of the patient's not wanting to know about his/her own body or medical condition, were therefore acknowledged as passively expressed entities borne from the patient's forfeiture of the Right to Know and Right to Consent, and exempting the physician from the Duty to Inform. The potential risk of adverse effects rising as a result of applying the Informed Consent Dogma to situations described above were only passively recognized, seen merely as a preclusion of the Informed Consent Dogma or a denial of liability on part of the physician. In short, the legal measures that guarantee a patient's 'Wish for Ignorance' are not currently being understood and acknowledged under the active positions of the patient's 'Right Not to Know' and the physician's 'Duty to Consideration' (such as the duty not to inform). Practical and theoretical issues arise absent the recognition of these active positions of the involved parties. The question of normative evaluation of cases where a sizable amount of harm has come up on the patient as a result of the physician explaining to or informing the patient of his/her medical condition despite the patient previously waiving the Right to Consent or exempting the physician from the Duty to Inform, is one that is yet to be addressed; that of ascertaining direct evidence/legal basis that can cement legality to situations where the physician foregoes the informing process under consideration that doing so may cause harm to the patient, is another. Therefore it is the position of this paper that the Right [Not to Know] and the Duty [to Consideration] play critical roles both in meeting the legal normative requirements pertaining to the enrichment of the patient's Right to Self-Determination and the prevention of adverse effects as it pertains to the provision of [unwanted] medical information.

• The Korean Society of Law and Medicine
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• v.19 no.1
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• pp.143-163
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• 2018

Implant procedure belongs to so called a commercialized medical treatment, its procedure is simple and clear, and the possibility of success is almost 100%. In addition, it is a selective method rather than an inevitable method for a patient's health, so the importance of liability for explanation is especially emphasized for protection of autonomous decisions by patients. Considering these characteristics, the plaintiff in the relevant case said that the contract of implant procedure has the characteristic of subcontract, and only the failure of implant itself and the violation of liability for explanation should be the defendant's fault liability. In addition, although the above procedure contract is considered as delegation rather than subcontract, whether it's the defendant's malpractice should be judged by general people's common sense rather than average people in the industry. Therefore, if all the implanted teeth were removed due to bleeding and pains, and the patient suffered from dysaesthesia during the process, the defendant's malpractice is fully proved. When the judgements of implant medical malpractice were researched, the court doesn't consider implant contract as subcontract, but it judges dentist's malpractice by whether the implant itself is successful, so it seems that the court acknowledges similar characteristics with subcontract whose purpose is completion of work to some degree. In addition, considering the detailed contents of presented medical malpractices, it seems that judging medical malpractice is based on the common sense of general people. Therefore, the argument of the plaintiff is valid when the fact the adjustment amount is relevant to the amount that the plaintiff initially claimed is considered even though the relevant case was decided to be compulsory mediation.

• The Korean Society of Law and Medicine
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• v.18 no.1
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• pp.3-35
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• 2017

The Supreme Court of Korea first admitted compensation for damages caused by breach of informed consent in 1979. From then on, specific details of informed consent are shaping up and developing through court precedents. The duty of informed consent of doctor is based on article 10 of the Constitution and medical contract, and is expressly prescribed Article 12 of Framework Act on Health and Medical Services and other acts and regulations. By the way, the regulations about duty of informed consent of doctor have been established in Medical Law revised on December 20, 2016, and the revised Medical Law will be implemented on June 21, 2017. According to the revised Medical Law, medical practices subject to description and consent are operation, blood transfusion and general anesthesia that threaten to cause serious harm to human life or to the body. When performing these medical activities, the written consent must be explained and agreed upon in advance. If a doctor violates the law, he will incur fines of less than 3 million won. Comparing and viewing the revised Medical Law and existing legal principles about the duty of informed consent, we can confirm that there is a substantial difference between the two parties. Accordingly, despite the implementation of the revised medical law, the existing legal principles are unlikely to be affected. However, from the perspective of legal uniformity and stability, it is undesirable that legal judgments on the same issues differ from each other. The revised Medical Law about informed consent needs to be reformed according to existing legal principles. And, as in the case of Germany, it is desirable to include the matters concerning informed consent in the civil code.

• The Korean Society of Law and Medicine
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• v.15 no.2
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• pp.227-251
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• 2014

In current law, the premium medical treatment system gives patients the right of choice between normal medical treatment service and premium medical treatment service. Only the doctors having a career more than a certain period of time fixed in the law are eligible for providing the premium medical treatment service. So, the premium medical treatment system is highly related to the patients' right to know and the right of self-determination. The system is also relevant to the so-called 'economic explanation' notion because patients should pay additional fee when they want to use this system. Meanwhile, the situation as follows is problematic as to this system. Although a patient applied for using the premium medical treatment system and the patient also chose his or her own doctor specifically, another doctor who was not selected as premium doctor could make a medical accident. Then, is the another doctor liable for damages because the accident was a medical malpractice or a breach of medical contract? In this study, we are going to examine the problems related with the premium medical treatment system. First, we examine the current law related to the system. Second, we look into the economic explanation duty and its application to the premium medical treatment system. Finally, we examine a real judgment case about a medical practice against the premium medical treatment system and we propose our solution to this case.

• The Korean Society of Law and Medicine
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• v.24 no.3
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• pp.155-206
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• 2023

When a person with diminished mental capacity refuses necessary medical care, normative judgments about when paternalistic intervention can be justified come into question. A typical example is involuntary hospitalization for people with mental disabilities, traditionally governed by mental health law. However, Korean civil law reform in 2011 introduced a new form of involuntary hospitalization through guardianship legislation, leading to a dualized system to involuntary hospitalization. Consequently, a conflict has arisen between the 'best interest and surrogate decision-making' paradigm of civil law and the 'social defense and preventive detention' paradigm of mental health law. Many countries have criticized this dualized system as not only inefficient but also unfair. Moreover, the requirement for the presence of 'mental illness' for involuntary hospitalization under mental health law has faced criticism for unfairly discriminating against people with mental disabilities. In response, attempts have been made to integrate guardianship legislation and mental health law based on mental capacity. This study examines the legislative process and framework of the Mental Capacity Act (Northern Ireland) 2016, which reorganized the mental health care system by fusing guardianship legislation with mental health law based on mental capacity. By analyzing the case of Northern Ireland, which has grappled with conflicts between guardianship legislation and mental health law since the 1990s and recently proposed mental capacity as a single, non-discriminatory standard, we aimed to offer insights for the Korean guardianship and mental health systems.

• The Korean Society of Law and Medicine
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• v.18 no.2
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• pp.3-46
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• 2017

Physician's Duty of Information is classified into three categories by legal function: 'Duty of Information to Report' to fulfill the patient's right to know; 'Duty of Information to Guide' patient's convalescing and staying healthy; 'Duty of Information to Contribute' to patient's self-determination. We classify the physician's duty of information because the legal effect from the breach of duty varies accordingly. The legal effect is focused on damage compensation responsibility for breach of duty. When a physician violates 'Duty of Information to Report', he subjects himself to liability of compensation for infringing on the patient's 'Right to Know'. When a physician violates 'Duty of Information to Guide', she subjects herself to liability for general medical malpractice. Finally, when a physician violates 'Duty of Information to Contribute', the physician is basically liable for violation of the patient's 'Right to Self- Determination' which refers to infringement on freedom of choice. However, in the case of situation that patient's refusal to the medical treatment would be presumed, the physician bears all liability for the patient's damage which includes both of property and mental damage.

• The Korean Society of Law and Medicine
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• v.20 no.2
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• pp.3-39
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• 2019

Even after the Constitutional Court decided on August 23, 2012 that the provisions of abortion were constitutional, discussions on the abolition of abortion continued. The controversy about abortion is not only happening recently, but it has already existed since the time when the Penal Code was enacted, and it shares the history of modern legislation with the Republic of Korea. Legislators whom submitted amendment while insisting upon the eradication of abortion in the process of enacting criminal law at that time, presented social and economic adaptation reasons as the core reason. From then on, the abolition of abortion has been discussed during the development dictatorship, but this was not intended to guarantee women's human rights, but it was closely connected to the national policy projects of "Contraception" and "Family Planning" of the Park's dictatorship. Since then, the enactment of the Mother and Child Health Law, which restrictively allow artificial abortion, was held on February 8, 1973, in an emergency cabinet meeting that replaced the legislative power after the National Assembly was disbanded. It became effected May 10th. The reason behind the Mother and Child Health Law that included legalization of abortion in part was that the Revitalizing Reform at that time did not allow any opinion, so it seem to be it was difficult for the religious to express opposition. The "Maternal and Child Health Law" enacted in this way has been maintained through several amendments. It can be seen that the question of maintenance of abortion has been running on parallel lines without any significant difference from the time when the Penal Code was enacted. On August 23, 2012, the Constitutional Court decided that the Constitutional Opinion and the unonstitutional Opinion were 4: 4. However, it was decided by the Constitution without satisfying the quorum for unconstitutional decision of the Constitutional Court. This argument about abolition of abortion is settled for the the time being with the decision of the constitutional inconsistency of the Constitutional Court, and now, the National Assembly bears the issue of new legislation. In other words, the improved legislation must be executed until December 31, 2020, and if the previous improved legislation is not implemented, the crime of abortion (Article 269, Paragraph 1, Article 270 of the Criminal Code) Article 1 (1) will cease to be effective from 1 January 2021. Therefore, in the following, we will look into the reason of the Constitutional Court's constitutional discordance adjudication on criminal abortion(II), and how it structurally differs from the previous Constitutional Court and the Supreme Court. After considering key issues arised from the constitutional discordance adjudication(III), the legislative direction and within the scope of legislative discretion in accordance with the criteria presented by the Constitutional Court We reviewed the proposed revisions to the Penal Code and the Mather and Child Health Act of Korea(IV).

• The Korean Society of Law and Medicine
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• v.13 no.2
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• pp.217-261
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• 2012

Die Zeugen Jehovas lehnen Bluttransfusionen ab. Wiederholt haben Todesf$\ddot{a}$lle unter Jehovas Zeugen, die mit der Ablehnung von Bluttransfusionen in Verbindung gebracht werden, in den Medien f$\ddot{u}$r Aufsehen gesorgt, da die Zeugen Jehovas die $\ddot{U}$bertragung von fremdem Blut aus religi$\ddot{o}$sen Gr$\ddot{u}$nden entschieden ablehnen. Medizinische Behandlungen, auch Bluttransfusionen bed$\ddot{u}$rfen grunds$\ddot{a}$tzlich der Einwilligung des Patienten. Wenn sich ein Zeuge Jehovas gegen eine Transfusion entscheidet, ist dies zu respektieren. Ist ein erwachsener Patient Mitglied der Zeugen Jehovas und tr$\ddot{a}$gt dieser eine Patientenverf$\ddot{u}$gung bei sich, die eine Bluttransfusion ablehnt, weil es dadurch zu einer "Zerst$\ddot{o}$rung der Pers$\ddot{o}$nlichkeit" des Menschen aus religi$\ddot{o}$sen Gr$\ddot{u}$nden komme, so ist auch diese Verf$\ddot{u}$gung verbindlich, sofern sie ernsthaft ist. Bei Minderj$\ddot{a}$hrigen ist die Einwilligungsf$\ddot{a}$higkeit durch den Gesetzgeber bislang nicht geregelt. Minderj$\ddot{a}$hrige k$\ddot{o}$nnen grunds$\ddot{a}$tzlich selbst zustimmen, wenn sie ihrer geistigen und sittlichen Reife nach einsichtsf$\ddot{a}$hig sind. Bei Jugendlichen ab dem 16. Lebensjahr muss der Arzt ermitteln, wie einsichtsf$\ddot{a}$hig sie sind und inwiefern sie selbst in die medizinische Behandlung einwilligen k$\ddot{o}$nnen. Einwilligung kann aber nicht eingeholt werden, wenn der Patient einwilligungsunf$\ddot{a}$hig ist. Bei Kindern bis zum 16. Lebensjahr ersetzt die Einwilligung der Eltern in die medizinische Behandlung die Einwilligung der Kinder. Ob die Entscheidungen der Eltern $\ddot{u}$ber ihre unm$\ddot{u}$ndigen Kinder im Fall lebensbedrohlicher Krankheitsverl$\ddot{a}$ufe von den behandelnden $\ddot{A}$rzten akzeptiert werden m$\ddot{u}$ssen, ist umstritten. Die Ablehnung einer Bluttransfusion f$\ddot{u}$r ein transfusionsbed$\ddot{u}$rftiges Kind w$\ddot{a}$re eine Kindeswohlgef$\ddot{a}$hrdung. Bei Kindern ist der Weg $\ddot{u}$ber die $\ddot{U}$bernahme des Sorgerechts durch das Gericht unvermeidlich, falls die Eltern auf der Ablehnung einer lebensnotwendigen Transfusion beharren. Im Rahmen der objektiven Interessenabw$\ddot{a}$gung ist der Grundsatz "in dubio pro vita" zu beachten. Bei erheblicher unmittelbarer Gefahr ist allerdings ein direktes Eingreifen n$\ddot{o}$tig.

• The Korean Nurse
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• v.23 no.3 s.126
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• pp.44-50
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• 1984

한국여성은 전통적으로 대가족제도 속에서 육아 및 가사활동에만 종사해왔다. 그러나 산업화 및 사회구조의 변화로 여성들도 교육의 기회를 갖게 되었으며 전통적인 역할 수행에 대한 가치변화와 함께 여성의 사회적 역할을 필요로 하게 되었다. 반면에 가족 형태가 핵가족화 함으로서 가족 내에서의 자녀양육을 비롯한 가정적 역할이 더욱 중요시 되게 되었다. 오늘날 한국사회는 여성에게 현재의 사회구조와 핵가족 속에서는 시간적으로 동시에 수행할 수 없는 두 가지 상반된 역할을 강조하고 있는 것이다. 이러한 상반된 역할사이에서는 여성은 갈등과 좌절감을 느끼게 되며 이중적인 부담 속에서 생활하게 되었다. 본 원고에서는 전통적인 한국의 가족가치관을 살펴보고 건강관리 측면에서 여성의 역할을 살펴보고 건강관리 측면에서 여성의 역할을 살펴보고자 한다. 전통적 가족가치관과 여성-우리나라의 전통적 가족은 부계 중심의 혈연 계승을 중요시하는 가부장적 대가족제도라 할 수 있다. 따라서 부계 계승을 통한 가족의 영속성과 가 중심사상에 기반을 둔 철저한 가족주의적 가치관이 전통적 사회를 지배하여 왔다. 그러므로 자연히 개인보다 가족집단이 우의적인 지위에 있을 뿐만 아니라 모든 행동의 결정에도 중요한 준거 집단이 되었다. 이러한 가의 영속 및 번영을 가장 효과적으로 수행하기 위해서는 많은 자녀를 필요로 했으며 부계중심 가족에서 자연히 남아 선호사상이 강할 수밖에 없었으며 이것은 조상에 대한 의무요 책임이라 생각했다. 이러한 가부장권의 확대에 반비례해서 가정 내에서 여성의 지위와 역할은 축소되어갔다. 여성들의 절대적인 예속을 필요로 하여 삼종지도니 칠거지악이니 불경이부등의 도덕률을 만들었으며 여성들 스스로가 이러한 정절과 복종을 미덕으로 생각하도록 교육받음으로서 여성들 자신이 자기희생의 굴레 속에서 인내와 복종의 생활을 운명처럼 받아들이게 되었으며 남편과 자식을 위해서는 목숨까지도 희생하게끔 철저히 사회화되었던 것이다. 그러나 가족 제도 안에서의 남녀의 지위는 동위 항렬 내에서만 해당되고 항렬을 달리할 때는 삼종지도의 이론에 부합된다. 어머니로서의 존장련이 인정되어서 가정 내에서의 여성의 종속적인 지위에 비하여 모의 권한은 절대적이었다. 상례와 제례에서 어머니와 아버지에 대한 의식에는 차이가 없으며 내외 명부제도에 의해서 부인도 남편과 똑같은 대우를 받도록 되어있다. 이러한 존장련에 의한 모의 권리와 더불어 부부유별에 의해서 가사권의 독자적인 결정권도 인정되고 있었다. 건강관리 측면에서 여성의 역할- 전통적으로 건강관리에 관련된 한국여성의 역할은 1. 씨받이로서의 역할로 생명을 잉태하도록 돕고 건강한 아이의 수태를 위해 태교에 힘썼으며 2. 자녀의 의식주를 해결하는 가사 역할만을 담당하는 전통적인 여성의 역할만을 수행하였으며 출산한 생명을 건강하게 자라도록 건강관리를 철저히 하였으나 체계적인 건강관리는 되지 못하였으며 특히 식생활에 유의하였으나 정서, 사회면은 도외시 한 과잉보호현상이었다. 3. 결혼 후에는 남편의 건강관리를 위해 철저하였으며 특히 식생활에 유의하였고 정서적으로 부담을 주지 않도록 유념하였다. 4. 또한, 임종시 평안한 죽음을 맞도록 도왔다. 전통적으로 한국여성의 역할은 돕는 역할이었다.