• 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."

• Korea Trade Review
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• v.42 no.2
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• pp.205-225
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• 2017

The study attempts to verify the case related to the notice of payment refusal by issuing bank regarding discrepancy in transport document under L/C(Letter of Credit) transaction. Considering the high portion of trade between Korea and China, Korean companies and banks in L/C transaction should be careful about many unpredictable situations. The case of this study is that Chinese seller(beneficiary) initiated a civil suit against Industrial Bank of Korea to Chinese court and Chinese courts in the first and second trials judged that the notice of payment refusal by Industrial bank of Korea doesn't satisfy Article 16, (c) (ii) (iii) in UCP 600. However, Industrial Bank of Korea implements the judgement even though the judgement is highly biased to Chinese seller. Considering the judgement by Chinese courts, the study suggests some countermeasures to Korean companies and banks which opened L/C. First, the issuing bank should describe the contents of discrepancy specifically based on Article 16, (c) in UCP 600. Second, it is necessary to insert a clause regarding governing law in the L/C contract like sales contract. Third, considering the biased judgement by Chinese court and difficulty in execution of foreign judgement in China, it is recommended to using arbitration as a method of dispute resolution such as ICLOCA and DOCDEX Rules which are international system operated by international instruments because it has legal effects to parties in L/C contracts if the issuing bank inserts arbitration clause in L/C.

• The Korean Society of Law and Medicine
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• v.20 no.3
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• pp.47-79
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• 2019

The Korean Society of Law and Medicine has faithfully played the role of professional academic organizations last 20 years in terms of academic activities, accumulated achievements, diversity, professionalism, and influence on academic circles. The Korean Society of Law and Medicine and the Journal of Medical Law serve as a platform for academic information and exchange of opinions on medical law. Medical law began in the midst of increasing conflicts and disputes caused by medical malpractice and the enactment and legal coercion of medical care as pressure on medical workers. It tried to find a way to coexist with each other through the encounter and convergence of medicine and law. Medical criminal law extends from traditional crimes in the realm of life and body protection to bioethics violations caused by the development of biomedical technology, corruption and economic crime in the medical field. Medical law has evolved into a comprehensive legal area dealing with legal issues raised in medical treatment, healthcare, bioethics, and life sciences technology. On the legal side, medical law is not independent legal areas. It is overlapping with traditional law areas such as civil law, administrative law, criminal law, social law, civil and criminal procedure law. However, it is now established as a convergence study in medicine, bioethics, life science, as well as in various fields of law. It has become an area where collaboration is needed with the field of law, medicine, ethics, sociology and economics. Medical criminal law has undergone a dynamic development over the last two decades. The development of medicine and medical technology provides new and innovative methods of diagnosis and treatment. The achievements and risks of revolutionary developments in biotechnology, genetic engineering and medicine coexist. While there is a dazzling achievement that mankind has hoped for: combating disease and improving health, it also creates unwanted side effects and risks to humans. There is a need to reconsider ethical and legal principles. The discovery and development of patient identity and autonomy has changed the medical doctor-patient relationship. Furthermore, it was complicated by the triangle relationship of patients, medical doctors and insurance. Legal matters are also complicated. This is why the necessity of legislation is emerging. Criminal punishment provisions are also required. The Medical Law and Biomedical Law are systematically and coherently deformed as mosaic-based legislation that takes place whenever there are social issues, citizens' needs, and medical organizations' interests, rather than sufficient enactment and revision procedures. It needs a complete overhaul, and this is possible through interdisciplinary collaboration which is the strength of The Korean Society of Law and Medicine.

• The Korean Society of Law and Medicine
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• v.20 no.1
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• pp.133-162
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• 2019

Due to the nature of medical malpractice lawsuits, it is difficult for medical consumers, who are weak in getting information when it comes to health care problem, to secure all information inside the hospital. Even if you are confident about the hospital infection, it is true that people have difficult to obtain medical testimony by expert. It is seen as no easy task to testify to the malpractice of colleagues who work in the same field not only in our country but also abroad, when a doctor gives negative testimony to another doctor in a medical malpractice lawsuit. Although few health care providers will be motivated to take medical care from the outset, testimony or statements from a medical practitioner can have a significant impact on the outcome of a lawsuit, as it is impossible for the patient to control or be aware of the whole process of medical conduct, especially in the event of a hospital infection and the victim. If the hospital can prove the causality of damages caused by negligence of the employees or supervision of the hospital itself in a medical suit caused by the infection, the level of protection of the victim could be raised further. We sought to find a solution to these problems by looking at the provisions of other laws related to hospital infection. In particular, as the comparative legal review regarding hospital infection, Germany's legislative precedent sets a medical contract as a typical civil law contract, so it is thought that looking at German civil law regulations also has implications for Korean law. We also tried to improve the French Special Act 'rights of patients' and we can look at the consequent changes in court cases. Finally, the content of the U.S. case's and the theory of 'the doctrine of res ipsa loquitur' in relation to it show that doctors and hospitals have been forced to shift the burden of proof through this theory. This paper tried to find out the implications of mitigating the burden of proof by reviewing various issues that might be related to medical litigation of hospital infection from a comparative point of view.

• Journal of Korea Water Resources Association
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• v.53 no.12
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• pp.1071-1079
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• 2020

For integrated water management, it is essential to secure basic data such as the amount of agricultural water intake. The river water intake through the intake weir is carried out through the agricultural irrigation canal, and a method for measuring the quantity of water intake is required to suit the characteristics of the measuring points. In this study, the accuracy of the calculated flow data was determined by applying a microwave water surface current meter. The microwave water surface current meter is a method of calculating surface velocity using doppler effect, which is mainly used in high-velocities situations such as flood. Surface velocity is difficult to represent the average velocity of the entire section at low dicharges or high wind speeds, it is considered to be low in continuous utilization throughout the year, and it is necessary to verify whether the measurement using an microwave water surface curren meter is appropriate in agricultural irrigation canal. The data measured with an microwave water surface curren meter were compared with the actual flow data to calculate the intake data in agricultural irrigation canal. In agricultural irrigation canal, the low-level discharge calculated using an microwave water surface current meter at a minimum velocity of about 0.3 m/s and a minimum discharge of about 1.0 m3/s or higher was found to have a high tendency and accuracy compared to the standard discharge, especially when the high discharge was high. Although effective results can be obtained in terms of quantity at low discharge, it is deemed that subsequent studies are needed to calculate the average discharge of the cross section at low discharge, given that the trend of data is unstable. Through this study, it is suggested that it is appropriate to calculate the amount of water intake through the microwave water surface current meter in artificial waterways with a certain discharge or higher, so it is expected to be widely distributed as a method for measuring river water intake.

• The Korean Journal of Air & Space Law and Policy
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• v.19 no.2
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• pp.9-53
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• 2004

This paper described the contents of theme entitled "Domestic Legislative Problems on the Civil Liability of Air Carrier in Korea" including the current example of fourteen countries' legislation ((1) Great Britain, (2) United States of America, (3) Canada, (4)European Union), (5) Germany, (6) France, (7) Italy, (8) Spain, (9) Swiss, (10) Australia, (11) Japan, (12) People's Republic of China, (13) Taiwan, (14) North Korea) relating to the aviation law or air transport law. Though the Korean and Japanese aviation act has provided only the public items such as (1) registration of aircraft, (2) persons engaged in aviation, (3) operation of aircraft, (4) aviation facilities including airport, (5) air transport business, (6) investigate of aircraft accidents etc., but they could not regulated the private items such as the legal relations of the air transport contract (1) air passenger ticket, (2) air luggage ticket, (3) airway bill, (4) liability of air carrier, (5) amount of compensation for damage caused by aircraft accidents, (6)jurisdiction, (7) arbitration, (8) limitation of action, (9) combined carriage, (10) carriage by air performed by an actual carrier other than contracting carrier, damage caused by aircraft to the third parties etc. in their aviation act until now. In order to solve speedily the legal problems on the limitation of air carrier's liability and long law suit and disputes between wrongdoers and survivors etc, it is necessary and desirable for us to enact a new "Draft for the Air Transport Act" including the abovementioned private items. I would like to propose personally and strongly the legislation of "Draft for the Air Transport Act" in Korea in emphasizing the importance of ensuring protection of the interests of consumers air passengers and shippers in carriage by air and the need for equitable compensation between air carriers and survivors caused by the aircraft accidents such as the German Air Transport Act (Luftverkerhrsgesetz).

• Journal of Arbitration Studies
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• v.24 no.4
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• pp.49-97
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• 2014

This study is about the availability of Chinese internal arbitration institutions by Korean invested companies. Generally, Chinese internal arbitration institutions lack independence from government. However, because parties seeking an arbitration award have ways to get neutrality from internal arbitration institutions that guarantee party autonomy, these Korean companies can use Chinese internal arbitration institutions to resolve disputes in China. Special attention should be given to the following. First, because Korean companies invested in China are legally in the same position as Chinese companies, unless foreign-related factors intervene, when disputes occur with Chinese companies or individuals, the disputes correspond to internal dispute, and when it comes to choosing the arbitration institution, these Korean companies must choose either a Chinese internal arbitration institution or foreign-related arbitration institution. Second, most Chinese internal arbitration institutions still lack independence from government, which can influence the fairness of arbitration in the future. Therefore, Korean companies invested in China should think about alternative ways to get a minimum impartiality in arbitration cases. Third, the parties are allowed to choose arbitration rules freely in Beijing, Xian, Chongqing, Guangzhou, and Hangzhou arbitration commissions. Therefore, in arbitration cases, the parties can get impartiality by choosing arbitrators according to the arbitration rules which they agree on, or by choosing partially modified arbitration rules of those arbitration commissions. Fourth, in order to get an impartial arbitration award from Chinese internal arbitration institutions in China, it is important for Korean lawyers or arbitration experts -- fluent in Chinese -- to be registered in the List of Arbitrators of Chinese internal arbitration institution by way of signing a MOU between the Korean Commercial Arbitration Board, or the Korean Association of Arbitration Studies and arbitration commissions such as those of Beijing, Xian, Chongqing, Guangzhou, and Hangzhou which comparatively do guarantee party autonomy. Fifth, because application of the preservation of property before application of arbitration is not approved in China, in practice, in order to preserve property before application of arbitration, it is best to file another suit in China based on other legal issue (e.g., tort) independent from the contract which an arbitration agreement is applied to. Sixth, in arbitration commissions which allow different agreement regarding arbitration procedures or arbitration rules, it is possible to choose a neutral arbitrator from a third country as a presiding arbitrator via UNCITRAL arbitration rules or ICC arbitration rules. Seventh, in the case of Chinese internal arbitral award, because the court reviews the substantive matters to decide the refusal of compulsory execution, the execution rate could be relatively lower than that of foreign-related cases. Therefore, when Korean companies invested in China use Chinese internal arbitration institution, they should endure low rate of execution. Eighth, considering the operational experiences of public policy on foreign-related arbitration awards so far, in cases of Chinese internal arbitration award, the possibility of cancellation of arbitral award or the possibility to refuse to execute the award due to public policy is thought to be higher than that of foreign arbitral awards. Ninth, even though a treaty on judicial assistance in civil and commercial matters has been signed between Korea and China, and it includes a provision on acknowledgement and enforcement of arbitral award, when trying to resolve disputes through Chinese internal arbitration institution, the treaty would not be a big help to resolve the disputes, because the disputes between Korean companies invested in China and the party in China are not subject to the treaty. Tenth, considering recent tendency of conciliation by the arbitral tribunal in China and the voluntary execution rate of the parties, the system of conciliation by the arbitral tribunal is expected to affect as a positive factor the Korean companies that use Chinese internal arbitration institution. Finally, when using online arbitration, arbitration fees can be reduced, and if the arbitration commissions guaranteeing party autonomy have online arbitration system, the possibility of getting impartial arbitration award through them is higher. Therefore, the use of online arbitration system is recommended.

• (The)Study of the Eastern Classic
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• no.36
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• pp.31-56
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• 2009

The core thought of Confucius("論語") is 'Ren(仁)'. Then, how ought we to interpret this 'Ren(仁)'? In this study, the researcher has interpreted 'Ren(仁)' from the perspective of Xiujizhiren(修己治人), which is the doctrine of Confucianism and its ideal. At first, the researcher closely reviewed Ren(仁) on the viewpoint of Xiuyang (修養). Ren(仁) is the most fundamental virtue that enables general populace to equip with their qualification as a human being. Specifically, to live like a human being, Ren(仁) is a must. That is to say, it will suffice if we only can expose well what was already cherished inside us, rather than exerting efforts to attain Ren(仁), in some contexts, that must achieve in order to live like a human being. The reason that we exert our efforts for self-cultivation is to bring this Ren(仁), which is foundation of human life, before the public. Even in relationship-building, Ren(仁) is necessary. Human being is not an existence that can live alone, but at all times, humans are required to build a relationship with others. To make this relationship-building lead into right direction, we need to think of that the standpoint of oneself and the other are identical. That is, when I myself and the other person are in the most optimal situation, then a right relationship-building can take place. This most optimal status is Ren(仁). The ideal of Confucianism is to establish a society where all people can enjoy their comfortable life. To accomplish such a society, each individual and society ought to be benevolent and to cherish humanity at the first place. That is to say, people should attain Ren(仁) from both aspects of Xiuji(修己) and Zhiren (治人). If Ren(仁) has not been attained from any of either side, then it is hard to say that the ideal of Confucianism is completely realized. However, Zhiren(治人) must be backed up by Xiuji(修己). For this reason, Kongzi(孔子) presented three steps in connection with this cultivation process, to wit, 'Cultivation of himself in reverential carefulness'(修己以敬) ${\rightarrow}$ 'Cultivation of himself so as to give rest to others'(修己以安人) ${\rightarrow}$ 'Cultivation of himself so as to give rest to all the people'(修己以安百姓). It is noticeable that Xiuji(修己) is included in all three phases. The society that Kongzi(孔子) longed for is still valid in this modern world. Therefore, Ren(仁) which was edified by Kongzi(孔子) is necessary for today's society. If we don't interpret Ren(仁) as with a fixed term lying stagnant in one place, then its definition shall be interpreted newly so as to suit the times and the situation of civil society, thus this Ren(仁) shall be the foundation for building a desirable society for humans.

• Journal of the Korea institute for structural maintenance and inspection
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• v.27 no.6
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• pp.152-161
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• 2023

In general, large-capacity hydrogen storage vessels, typically in the form of vertical cylindrical vessels, are constructed using steel materials. These vessels are anchored to foundation slabs that are specially designed to suit the environmental conditions. This anchoring method involves pre-installed anchors on top of the concrete foundation slab. However, it's important to note that such a design can result in concentrated stresses at the anchoring points when external forces, such as seismic events, are at play. This may lead to potential structural damage due to anchor and concrete damage. For this reason, in this study, it selected an vertical hydrogen storage vessel based on site observations and created a 3D finite element model. Artificial seismic motions made following the procedures specified in ICC-ES AC 156, as well as domestic recorded earthquakes with a magnitude greater than 5.0, were applied to analyze the structural behavior and performance of the target structures. Conducting experiments on a structure built to actual scale would be ideal, but due to practical constraints, it proved challenging to execute. Therefore, it opted for an analytical approach to assess the safety of the target structure. Regarding the structural response characteristics, the acceleration induced by seismic motion was observed to amplify by approximately ten times compared to the input seismic motions. Additionally, there was a tendency for a decrease in amplification as the response acceleration was transmitted to the point where the centre of gravity is located. For the vulnerable components, specifically the sub-system (support columns and anchorages), the stress levels were found to satisfy the allowable stress criteria. However, the concrete's tensile strength exhibited only about a 5% margin of safety compared to the allowable stress. This indicates the need for mitigation strategies in addressing these concerns. Based on the research findings presented in this paper, it is anticipated that predictable load information for the design of storage vessels required for future shaking table tests will be provided.