• Title/Summary/Keyword: Liability Principle

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The Meaning and Criterion of Medical Malpractice(negligence) from Moderating the Burden of Proof in a Medical Malpractice Suit (의료과오소송에 있어 입증책임 완화에 따른 의료과실의 의미와 판단기준)

  • Kim, Yong-Bin
    • The Korean Society of Law and Medicine
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    • v.9 no.1
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    • pp.57-127
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    • 2008
  • In medical malpractice lawsuits, negligence is generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from a foreseeable risks of harm. Thus, the essence of negligence is a breach of obligations to be attentive, and the breach of obligations to be is negligence. However, whether negligence is or not depends on time, place, litigation forms and the judge since the meaning of negligence is wavering on the basis of abstract and normative judgment. In this thesis, what is medical negligence, a breach of obligations of attention for a doctor in medical malpractice lawsuits, would be it further enacted that doctors have the responsibility to protect the patients as a subordinate duty due to a principle of faith and sincerity besides the main duty for medical contract-performance since the suit is a litigation form to be based on responsibilities of experts, especially doctors, though having factors that are non-contractual as a trait for medical treatment. Further on the concept, when the plaintiff asserts and proves a specific fact from the recent moderation of the burden of proof about medical malpractices, whether the court should find a true bill in medical malpractice actually or not has been discussed.

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A Juridical Approach to Causal Relations between Ocean Freight Shipping and Seaworthiness of Vessel (해상화물운송에 있어서 선박의 감항성(勘航性)과 인과관계(因果關係)에 관한 법리적(法理的) 접근(接近))

  • Park, Chang-Sik;Kim, Cheong-Yeul
    • Journal of Korea Port Economic Association
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    • v.22 no.2
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    • pp.83-108
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    • 2006
  • Regarding the ocean carrier's responsibility for damage indemnification, both his or her duty of care and reason of legal exemption have been considered important. The International Convention for the Unification of Certain Rules relating to Bills of Lading also provides that the ocean carrier indemnifies for the loss or damage of freight on the basis of the principle of liability with fault. In other words, the carrier assumes responsibility only for the loss or damage of freight which is under his or her control and whose safety must be carefully maintained by him or her. The carrier's duty of care which is required for freight safety in accordance with the convention is associated with two themes, seaworthiness of vessel and freight itself. To make ocean freight shipping effective necessities the seaworthiness of the ship that will conduct the shipping service under its responsibility. This will ultimately lead to making the service impressive to the shipper as freight owner. Thus the purpose of this study is to contribute to more reasonable shipping by the shipowner or the carrier who needs to ensure seaworthiness of vessel, and prevent unseaworthiness that may be incurred in accordance with freight characteristics. For the purpose, this paper reviewed the meaning of seaworthiness of vessel through a juridical approach to its causal relationship with ocean freight shipping.

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A Comparative Study on the Duty of Disclosure and Warranty in Marine Insurance Contract (해상보험계약에 있어서 고지의무와 워런티)

  • 박은경
    • Journal of Korea Port Economic Association
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    • v.19 no.1
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    • pp.89-112
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    • 2003
  • In this article, 1'd like to analyse the principal distinctions between the duty of disclosure and warranty which are based on the same legal principles, utmost good faith(uberrima fides). Although the duty of disclosure and warranty have a same legal principle to protect insurance contract, they have several difference in appliance actually. Through these comparative analysis, 1 want to reveal the character of warranty which is unfamiliar to us under our commercial law. Warranty has some peculiarity, these are (a)A warranty does not have to be material to the risk, (b)A warranty must be exactly complied with, (c)It is impossible to defence for a breach of warranty, the breach of warranty is irremediable, and A casual connection between breach and loss needs not be shone, (d)A breach of a warranty may be waived by insurer. Sometimes in Korea like those stringent principles of warranty make Korean's small fishing or shipping company suffer from difficult because of insistence of discharge from liability by insurer. So I expect that all of them acknowledge the character of warranty and can make them protect their insurance money by themselves.

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A Study on CIETAC Arbitration Case about Applying the CISG - Focus on Dispute between China and HK Parties - (CISG의 적용에 관한 CIETAC 중재사례 연구 - 중국과 홍콩 당사자간 분쟁을 중심으로 -)

  • Song, Soo-Ryun
    • Journal of Arbitration Studies
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    • v.23 no.4
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    • pp.191-209
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    • 2013
  • The amount of international trade conducted through Hong Kong (HK) is increasing, thus rendering the legal framework governing contracts of sale between Mainland China (China) and HK is of particular importance. The status of HK under the CISG is currently unclear, however. First, the CISG entered into force in China in 1988. This important development had no legal effect for HK though as China lacked the power to enter into international conventions for HK. Second, the "Letter of Notification" deposited to the Secretary-General of the UN referred a list of treaties to be applied to HK, taking effect from July 1, 1997. This list, however, made no mention of the CISG. Third, China made a reservation in Article 95 of the CISG. Pursuant to Article 1(1)(b) of the CISG, the CISG cannot apply to HK. As a result, the Chinese Arbitral Tribunal apply the Chinese law according to the closest connection principle with the contract. In this case, attention must be given to the different result to which the CISG is applied. Liability for damages pursuant to the Chinese Contract Law (CCL) is just the same as Article 74 CISG, but CCL does not govern the case with substitute transaction and without substitute transaction when the contract is avoided. Therefore, the contract should be governed by the CISG from a business perspective when a contract is concluded between China and HK; otherwise, a promisee could not be fully compensated for all loss incurred.

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The Effect of the Writing Rules of Product User Guide on Consumer Accident Prevention (제품사용설명서의 작성원칙이 소비자의 제품사고예방에 미치는 영향)

  • Seo, JunHyeok;Bae, SungMin
    • Journal of Korean Society for Quality Management
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    • v.47 no.3
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    • pp.509-522
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    • 2019
  • Purpose: The purpose of this study is to analyze how the writing rules of the product user guide affect consumers' understanding of products and the prevention of product accidents. Methods: We surveyed consumers to see how the writing rules of the product user guide help consumers to understand products and prevent product accidents. Results: We derived the importance, necessity, usability, and readability of the principle of making product manuals through analysis of previous research. Usability is the writing rule of the product user guide that the consumer has the most influence on the understanding of product use and the product accident. Conclusion: It is necessary to make product user guide so that consumers can understand the function and safety of products by using video and various image media. Also, It is the obligation to explain all stages of the product and to communicate through the product user guide how to prevent the product accident step by step.

A Comparative Study on the Duty of Disclosure and Warranty in Marine Insurance Contract (해상보험계약에 있어서 고지의무와 워런티)

  • 박은경
    • Proceedings of the Korea Port Economic Association Conference
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    • 2003.07a
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    • pp.271-294
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    • 2003
  • In this article, 1'd like to analyse the principal distinctions between the duty of disclosure and warranty which are based on the same legal principles, utmost good faith(uberrima fides). Although the duty of disclosure and warranty have a same legal principle to protect insurance contract, they have several difference in appliance actually. Through these comparative analysis, I want to reveal the character of warranty which is unfamiliar to us under our commercial law. Warranty has some peculiarity, these are (a)A warranty does not have to be material to the risk, (b)A warranty must be exactly complied with, (c)It is impossible to defence for a breach of warranty, the breach of warranty is irremediable, and A casual connection between breach and loss needs not be shone, (d)A breach of a warranty may be waived by insurer. Sometimes in Korea like those stringent principles of warranty make Korean's small fishing or shipping company suffer from difficult because of insistence of discharge from liability by insurer. So I expect that all of them acknowledge the character of warranty and can make them protect their insurance money by themselves.

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The Limitation of Air Carriers' Cargo and Baggage Liability in International Aviation Law: With Reference to the U.S. Courts' Decisions (국제항공법상 화물.수하물에 대한 운송인의 책임상한제도 - 미국의 판례 분석을 중심으로 -)

  • Moon, Joon-Jo
    • The Korean Journal of Air & Space Law and Policy
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    • v.22 no.2
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    • pp.109-133
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    • 2007
  • The legal labyrinth through which we have just walked is one in which even a highly proficient lawyer could easily become lost. Warsaw Convention's original objective of uniformity of private international aviation liability law has been eroded as the world community ha attempted again to address perceived problems. Efforts to create simplicity and certainty of recovery actually may have created less of both. In any particular case, the issue of which international convention, intercarrier agreement or national law to apply will likely be inconsistent with other decisions. The law has evolved faster for some nations, and slower for others. Under the Warsaw Convention of 1929, strict liability is imposed on the air carrier for damage, loss, or destruction of cargo, luggage, or goods sustained either: (1) during carriage in air, which is comprised of the period during which cargo is 'in charge of the carrier (a) within an aerodrome, (b) on board the aircraft, or (c) in any place if the aircraft lands outside an aerodrome; or (2) as a result of delay. By 2007, 151 nations had ratified the original Warsaw Convention, 136 nations had ratified the Hague Protocol, 84 had ratified the Guadalajara Protocol, and 53 nations had ratified Montreal Protocol No.4, all of which have entered into force. In November 2003, the Montreal Convention of 1999 entered into force. Several airlines have embraced the Montreal Agreement or the IATA Intercarrier Agreements. Only seven nations had ratified the moribund Guatemala City Protocol. Meanwhile, the highly influential U.S. Second Circuit has rendered an opinion that no treaty on the subject was in force at all unless both affected nations had ratified the identical convention, leaving some cases to fall between the cracks into the arena of common law. Moreover, in the United States, a surface transportation movement prior or subsequent to the air movement may, depending upon the facts, be subject to Warsaw, or to common law. At present, International private air law regime can be described as a "situation of utter chaos" in which "even legal advisers and judges are confused." The net result of this barnacle-like layering of international and domestic rules, standards, agreements, and criteria in the elimination of legal simplicity and the substitution in its stead of complexity and commercial uncertainty, which manifestly can not inure to the efficient and economical flow of world trade. All this makes a strong case for universal ratification of the Montreal Convention, which will supersede the Warsaw Convention and its various reformulations. Now that the Montreal Convention has entered into force, the insurance community may press the airlines to embrace it, which in turn may encourage the world's governments to ratify it. Under the Montreal Convention, the common law defence is available to the carrier even when it was not the sole cause of the loss or damage, again making way for the application of comparative fault principle. Hopefully, the recent entry into force of the Montreal Convention of 1999 will re-establish the international legal uniformity the Warsaw Convention of 1929 sought to achieve, though far a transitional period at least, the courts of different nations will be applying different legal regimes.

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The Clinical Trial of Terminal Cancer Patients and The Nature of Self-Determination of The Subject (말기 암 환자에 대한 임상시험과 피험자의 자기결정권의 본질)

  • Song, Young-Min
    • The Korean Society of Law and Medicine
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    • v.15 no.1
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    • pp.211-237
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    • 2014
  • Because of unpredictability and high possibility of abnormal results by clinical trials compared to general medical behaviors, a procedure for ensuring with sufficient explanations by investigators must be secured. Therefore, in a sequence of clinical trials, what kinds of scope, stage, and method of explanations provided by investigators, including doctors or researchers, to trial subjects are closely related to the compensation for damages by violation of liability for explanation. In case of application of clinical trials to patients who have critical illness such as cancer, issues of "Quality of Life" regarding trial subjects, cancer patients, should be discussed. Especially, in case of clinical trials for terminal cancer patients, the right of subjects' self-determination, which is a fundamental principle in medical behaviors, should be discussed. The right of self-determination includes participation in clinical trials for the possibility of life-sustaining even a little bit, or no participation in clinical trials in order to have a time for completing the rest of his life. Like this, if the extent and scope of explanations related to the issues of "Quality of Life" are raised as main issues, the evaluation of "Quality of Life", should be a prerequisite. In many occasions, realistically, despite bad results such as deaths or serious adverse drug reactions after clinical trials, it may not be easy for compensating to trial subjects or their survivors, who requested civil compensation for damage. Futhermore, in abnormal results after concealment of clinical trials or performance of clinical trials without permission, and in the case of trial subjects' failures of proving proximate cause between the clinical trials and abnormal results, problematic results such as no protection to the trial subjects could be occurred. In performing clinical trials, investigators should provide sufficient explanations for trial subjects and secure voluntary informed consents from the trial subjects. Therefore, clinical trials without trial subjects' permissions and the informed consent process violate trial subjects' rights of self-determination, and the investigators shall be liable for compensation for damages. Then, issues might be addressed are what are essential contents of patients' "rights of self-determination" infringed by clinical trials without subjects' permissions. Two perspectives about patients' rights of self-determination might be considered. One perspective regards physical distress of patients (subjects) from therapies without sufficient explanations as the crux of the matter. The other perspective regards infringement of human dignity caused by being subjects without permission as the crux of the matter irrespective of risks' big and small influences. This research follows perspective of the latter. Forming constant fiduciary relation between investigators (doctors) and subjects (patients) pursuant medical contracts, and in accordance with this fiduciary relation, subjects, who are patients, have expectations of explanations and treatments by the best ways. If doctors and patients set this forth as a premise, doctors should assume civil liability when doctors infringe patients' expectations.

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Criminal liability of Internet Service Provider who leave illegal positing to take its own course (인터넷불법게시물을 방임하는 인터넷서비스제공자의 형사책임)

  • Yoo, In-Chang
    • Journal of the Korea Society of Computer and Information
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    • v.17 no.8
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    • pp.163-170
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    • 2012
  • Nowadays Internet is the greatest and most participating media of prompting expression with 37 million users in Korea. Internet enables collective communications between social members and contributes to form sound public opinions and to develop democracy while it has negative aspect to distribute massively crime by illegal posting which is forbidden by the Criminal Act. Criminal actors who involve to diffuse information on Internet consist of three categories of information provider, user and internet service provider. Illegal posting generated on Internet is originated from IP and the criminal regulation on it is useless and meaningless because of its countless of users and ambiguous boundary with liberty for expression. Accordingly, the only criminal policy means to prevent danger by illegal posting on Internet is to regulate ISP which saves illegal posting and mediates contacts among users. In spite of it, legislation to regulate ISP is unprepared. The prudent legislative review should be done. And it should be accordance with the doctrines of propriety and vagueness of the principle of "nulla poena sine lege".

Obligatory Report of the Lien in Real Estate Auction (부동산경매에 있어 유치권 신고의무)

  • Park, Jong-Ryeol
    • The Journal of the Korea Contents Association
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    • v.11 no.2
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    • pp.408-415
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    • 2011
  • A lienor of the real estate Auction procedure does not associate with the lien report truth in an existing law system, and lienor can be opposed to vendee. Malicious lienor abuses such a principle of law and loses a sale price of the deferred purpose real estate in Auction procedure by convenience of lienor. In addition, there is apt to be a case to let I do debtor and collusion and false return, and the Secured credit swell out greatly. The necessity that liability does lien report to assure Secured credi becoming the formation truth and the undertaking of lien in Auction procedure is practically acute need. I showed the legislation idea which switched present situation investigation improvement and lien by the executive officer in legal mortgage in civil law In addition, it revised introduction and the Civil Execution Act of the lien registration system and solved Obligatory Report of the Lien about lien for a legislation.