• The Korean Society of Law and Medicine
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• v.22 no.2
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• pp.49-79
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• 2021

Due to defendant's wrongful act by implant surgery, plaintiff has been suffered serious damages to his face and teeth, and pain caused by establishing implanted teeth. Jeonju Appellate Court sentenced to pay future medical expenses and alimony to the plaintiff in compensation for breach of duty or torts. The ruling is designed to relieve the burden of proof because it is extremely difficult for non-experts to determine whether dentists violated their 'duty of care' or whether there was a causal relationship between damages to medial treatment. It was judged that if symptoms that contributed to the patient's significant outcome occurred during or after surgery, such symptoms could be presumed to have been caused by medical negligence if indirect facts were proven to be other than medical negligence. Originally, the shifting of burden of proof in Germany, has already been developed in medical malpractice case since 1940s. In order to guarantee the patients' right, §630h German Civil Code (BGB) - presumption of negligence in the realization of controllable risk- has been also legislated. BGH (Bundesgerichtshof) has been interested in ensuring that the principle of equality between patients and doctors. So, in this study, we wanted to refer to German precedent cases to analyzing Korean medical malpractice lawsuit. In particular, the decision could be significant in that it approaches closer to allows the shifting burden of proof in drastically growing dental malpractice cases. This is clearly confirmed in the judgment of the dentist's "fault" that "if indirect facts about the symptom or occurrence are proven to be cause other than medical negligence, such symptoms can be presumed to be due to medical negligence."

• Journal of Korea Trade
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• v.25 no.2
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• pp.152-177
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• 2021

Purpose - This study analyses the excepted requirement and burden of proof of the carrier due to unseaworthiness through comparison between the marine transport contract and marine insurance contract. Design/methodology - This study uses the legal analytical normative approach. The juridical approach involves reviewing and examining theories, concepts, legal doctrines and legislation that are related to the problems. In this study a literature analysis using academic literature and internet data is conducted. Findings - The burden of proof in case of seaworthiness should be based on presumed fault, not proved fault. The burden of proving unseaworthiness/seaworthiness should shift to the carrier, and should be exercised before seeking the protections of the law or carriage contract. In other words, the insurer cannot escape coverage for unfitness of a vessel which arises while the vessel is at sea, which the assured could not have prevented in the exercise of due diligence. The insurer bears the burden of proving unseaworthiness. The warranty of seaworthiness is implied in hull, but not protection and indemnity policies. The 2015 Act repeals ss. 33(3) and 34 of MIA 1906. Otherwise the provisions of the MIA 1906 remain in force, including the definition of a promissory warranty and the recognition of implied warranties. There is less clarity about the position when the source of the loss occurs before the breach of warranty but the actual loss is suffered after the breach. Nonetheless, by s.10(2) of the 2015 Act the insurer appears not to be liable for any loss occurring after the breach of warranty and before there has been a remedy. Originality/value - When unseaworthiness is identified after the sailing of the vessel, mere acceptance of the ship does not mean the party waives any claims for damages or the right to terminate the contract, provided that failure to comply with the contractual obligations is of critical importance. The burden of proof with regards to loss of damage to a cargo caused by unseaworthiness is regulated by the applicable law. For instance, under the common law, if the cargo claimant alleges that the loss or damage has been caused by unseaworthiness, then he has the burden of proof to establish the followings: (i) that the vessel was unseaworthy at the beginning of the voyage; and that, (ii) that the loss or damage has been caused by such unseaworthiness. In other words, if the warranty of seaworthiness at the inception of the voyage is breached, the breach voids the policy if the ship owner had prior knowledge of the unseaworthy condition. By contrast, knowingly permitting the vessel to break ground in an unseaworthy condition denies liability only for loss or damage proximately caused by the unseaworthiness. Such a breach does not, therefore, void the entire policy, but only serves to exonerate the insurer for loss or damage proximately caused by the unseaworthy condition.

• The Korean Society of Law and Medicine
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• v.7 no.2
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• pp.113-136
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• 2006

In recent years, as well as the other countries, medical dispute cases increase continuously in China. one of the reason that medical cases increase rapidly like this is after reformation and opening people's sense of independence, law and right come to be high, but a theoretical study about medical malpractice liability is insufficient and there is deficiency at legislation from 1986 civil law general rule is carried out in Chinese. but it is difficulty to deal with those more and more complicated medical dispute only according to the law above. so in 2001 The Chinese Supreme Court established the judicial construction about civil litigation evidence which regulated the shift of the burden of proof of medical malpractice and the relation of cause and effect from the plaintiffs to the defendants. in 2002 the State Council made out Incident of Malpractice Processing Rule. but many scholar pointed out the problem in it. on the other side, according to Chinese Contract Law parties could choose contractual or tort liability to prosecute. but because of the judicial construction above majority of people asked tort liability. of course there are some cases asking contractual liability. then this paper aim at analysis of the Chinese medical malpractice liability, especially of the problems about the subject of responsibility, burden of proof and scope of responsibility.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.53
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• pp.101-133
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• 2012

The paper aims to analyse the obligations and Responsibilities of shipper in the Rotterdam Rules. The Rotterdam Rules, has underlying intention that it will provide uniform law for the international carriage of goods by sea. It is highly expected that the Rotterdam Rules will create the new international legal regime replacing Hague-Visby Rules and Hamburg Rules. Rotterdam Rules provide the obligations and responsibilities of shipper in express. The shippers obliged to provide, (a) duty as to the condition in which the cargo has to be delivered to the carrier, (b) cooperation of the shipper and the carrier in providing information and instruction, and (c) shipper's obligation to provide information, instructions and documents. The shipper is liable for loss or damage sustained by the carrier if the carrier proves that such loss or damages was caused by a breach of the shipper's obligations. However, the shipper is relieved of all or part of its liability if the cause or one of the causes of the loss or damage is not attributable to its fault or to the fault. But, the shipper shall indemnify the carrier against loss or damage resulting from the inaccuracy of such information. Rotterdam Rules is providing rather concrete as to the shipper's responsibilities and burden of proof in separate chapter. The question is whether such burden of proof of the fault should be imposed to the shipper.

• Environmental and Resource Economics Review
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• v.11 no.1
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• pp.31-55
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• 2002

When landowners have private information about land value, compensation based on conservation value at the time of regulatory takings of land is impractical even though it generates an efficient outcome. No compensation rule to a landowner not only yields an inefficient outcome but also provides an ex ante pervasive incentive for the landowner to invest in lowering conservation value. An alternative rule of compensation based on the market value of the land provides ex ante incentives for landowner either to reduce conservation value or to increase it. Under the market value compensation rule, placing the burden of proof on landowner gives higher probability of conservation than placing it on regulator. Whether it is better to allure landowners to conserve by paying compensation with market value and placing the burden of proof on landowner through changes in the regulatory regime however depends on the magnitude of inefficiency, equity consideration and dynamic nature of property rights on environmental goods.

• Journal of Environmental Health Sciences
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• v.42 no.6
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• pp.375-384
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• 2016

Objectives: This paper analyzes the intersection of tort law and environmental health in a recent court decision. Methods: This paper analyzes Supreme Court Decision 2011Da7437, Decided on September 4, 2014 and related lower court decisions. Results: The plaintiffs sought financial compensation from the defendants, arguing that air pollutants in gases emitted by vehicles produced by the defendants had caused them to acquire respiratory diseases. The district court highlighted the need to mitigate the burden of proof for the plaintiffs, but proceeded to review whether the plaintiffs proved the actual toxicity levels of the air pollutants, whether the defendant's vehicles were the main source of the emissions, the plaintiff's level of exposure to the pollutants, and causation between the emissions and the injury. By doing so, the district court required the plaintiffs to prove both indirect and direct facts of causation, increasing burden of proof for plaintiffs. The appellate court upheld the district court's decision, adding that the defendant's conduct did not constitute an illegal act because it did not violate the emissions standards set by environmental law. The Supreme Court upheld the appellate court's decision, reasoning that the epidemiological evidence cannot establish a direct causation for diseases that lack specificity. Conclusion: This case demonstrates that discussions in environmental health have significance in tort lawsuits. For each fact that the plaintiffs and defendants attempted to prove, environmental health research studies were offered as evidence. In addition, the courts decided the legality of the defendant's conduct based on emission standards set by environmental law.

• Journal of Korean Society of Occupational and Environmental Hygiene
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• v.25 no.2
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• pp.115-125
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• 2015

Objectives: The major objectives of this study are to review the EU CLP Regulations to propose ways of improving the reliability of MSDS and labels. Methods: To review the EU CLP Regulations, we used EU documents including directives and regulations on chemical management. In addition, we used EU governmental agency reports to illuminate the history and background of the CLP. We found the EU CLP's instruments for reliable hazard communication and evaluated the operations of the instruments. Results: EU CLP Regulations have four instruments for the EU CLP Regulations to make hazard communication reliable. These instruments are GHS, the harmonized CMR and respiratory sensitive substances classification list, C&L inventory and restriction of trade secrets. These are highly useful for achieving the objectives of REACH and CLP(no data-no market and changing the burden of proof). Conclusions: Changing the burden of proof is a key principle for achieving a society safe from hazardous chemicals. Chemical manufacturers and importers alone should bear the responsibility for reliable MSDS. We recommend benchmarking the EU CLP Regulations in order to change efficiently the burden of proof. Trade secrets should be limited to low-hazard substances and be approved by the government before the chemical product is on the market. Like the C&L inventory, chemical product information including substances identification and hazard properties should be notified, aggregated and be opened to public on the Internet. Finally, we recommend a MSDS registration system once again.

• Korea Trade Review
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• v.43 no.3
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• pp.101-124
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• 2018

After the establishment of the Korean Product Liability Act, a new clause on the burden of proof has been added and is being revised to meet the purpose of consumer protection. Article 3(2) of the new clause stipulates a provision for estimating a causal relationship when proving indirect facts to alleviate burden of proof. While consumer rights are increasing and public attention is drawn to consumer issues, problems are still emerging. In order to solve the problem, the U.S. Product Liability Act, which has strong consumer rights, was examined to describe the direction in which Korea's Product Liability Act should proceed in terms of consumer protection. The results of the comparative analysis show that the US has expanded the concept of strict liability in terms of rigorous liability, consumer dispute resolution, provable possibility, and litigation accessibility, The consumer dispute settlement system has thoroughly protected consumers by operating educational and systemic consumer ADR system. As for the possibility of proving, Korea has three provenances, and the United States has one. In the United States, where consumer lawsuits are frequent, lawsuits are more accessible than those in Korea, where the party responsible for proving is turned into a manufacturer and responsible for proving the case. This study focuses on consumer protection and provides implications for Korean product liability law.

• The Korean Society of Law and Medicine
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• v.15 no.1
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• pp.83-122
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• 2014

Compared with medical cases and health care law from other countries there has been a lot of progress on medical law, especially on medical precedents in Korea. However, in recent years, medical precedents tend to reflect a realistic position of health care providers, rather than normative position of the victim. The burden of proof to prove strict liability is given to patients in civil law suits by courts, patients generally has the burden of proof. The rate of claims to prove the negligence of medical malpractice is falling significantly. Even if the error is acknowledged, it is not enough to get right to be relief for patients by increasing limitations of liability or ratio of patient's own negligence. Compensation fee is included in medical fees and risk of medical malpractice actions contributes ultimately to a health care consumer. In conclusion, author represents a major the new upgrade of above mentioned problem. By advising that court should assess actively for the perspective of victim for medical negligence we will be able to exercise remedies of patients' rights and to prevent recurring medical accidents and also contribute to medical advances.

• The Korean Society of Law and Medicine
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• v.8 no.2
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• pp.195-204
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• 2007

It is a general principle that the plaintiff takes burden of proof about negligence and causation in a civil compensation litigation. And it is the same in a medical malpractice lawsuit. Korean courts have made diverse efforts to mitigate the plaintiff's duty to prove in medical malpractice lawsuits under the name of justice and impartiality. One of those theoretical attempt is 'presumption of causation'. The Supreme Court, since 1995, has developed a new logic for the theory of 'presumption of causation' which is characterized by a phrase "layman's common sense". The Court presumes the defendant's negligence and causation when the plaintiff alleges and proves the facts which can be pointed out and expressed by a layman with common sense. And if the defendant fails to prove that the result was caused by other fact than own medical activities, the defendant shall be defeated. I realize that this theory has problem for justice and impartiality. I would say that two fators should be considered and added to this logic. First,are defendant's acts generally belonging to gross negligence which would cause that kind of bad result? Second, is it recognized that there would be the causation generally and statistically between the cause and the result?