• The Korean Society of Law and Medicine
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• v.17 no.2
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• pp.3-28
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• 2016

While product liability has been settled as a technical term in civil law, criminal law does not commonly accept technical term for it. Not like civil law, product liability in criminal law point outs individual responsibility and disability of normative order. Meaning that causation between individual's action of violation of duty and the result of danger of legal interest or infringement of legal interest must be proved. In criminal law excluding "non-result-constituted crimes (Unternehmensdelikt)", charge of injuring, accidental infliction of injury, homicide or involuntary manslaughter is problematic in product liability. Of course, it is necessary to distinguish whether the action related to the outcome is act or ommission. Also the causal relationship between the action and the result must be proved, and the intention or negligence should be recognized. In this paper, it analyzes cases that were problematic in Korea, Germany, Spain, etc. Mainly focusing on the problems revealed in the determination of causal relationship, especially recognizing criminal liability related to products. Furthermore it is followed by the view of reviewing the cause-and-effect relationship by 2 steps, dividing natural scientific causation and the normative causal relationship. In this process, to acknowledge criminal product liability in accordance with recognizing cause-and-effect relationship, there should be general risk of specific substance causing the outcome. This only premise can be meaningful to examine the casual relationship from specific cases. As it shows in some cases and theories, it is not contradicting general law of cause and effect by determining specific causal relationship by free evaluation of evidence if a general causal relationship does not exist. Also since judge's testimony does not hold a dominant position from rule of thumb, it is possible to recognize specific causal relationship. However this paper takes position that if there is no objective and reasonably undeniable cause and effect law. If there is no objective and reasonably undeniable causal law, which is the premise for recognizing concrete causal relations, judge should sentence guilty according to "in dubio pro reo" principle. In addition, it is not allowed for the defendant to burden unproven fact by free evaluation of evidence which has an effect of shift of burden of proof.

• The Korean Journal of Air & Space Law and Policy
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• v.20 no.1
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• pp.211-253
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• 2005

Recently, the Korean Supreme Court released two important decisions concerning damages for the pain and suffering from Aircraft noise. The local people who are living near the Air Force practice site at Maehyang-ri and the Kimpo International Airport brought lawsuits against the Korean government requesting damages for their financial loss from the severe noise and the damages for their pain and suffering. Plaintiffs alleged that they suffered physical malfunctions, extreme disturbances and the reduction of property values from the extreme noises which were daily repeated. District Court of Seoul Province did not allow plaintiffs all but the damages for pain and suffering. Plaintiffs could not prove the causation between their financial loss and the noise. The Supreme Court confirmed the lower court's decision. Article V of the National Compensation Act (analogous to the Federal Tort Claims Act of the USA) reads, "the government shall be liable for any loss caused by the defect on establishment or maintenance of public facilities." In the two cases, the major issue was whether the government's establishment or maintenance of Air Force practice site and the airport was defective because they caused serious noise to surrounding neighbors. Previously, the Supreme Court interpreted the clause "defect on establishment or maintenance of public facilities" as failure of duty to provide safety measures to the degree generally required to ordinary manager. However the Court at this time interpreted differently that the defect could be found if the facility caused to any person loss to the degree intolerable. In the two cases the Court confirmed the lower court's finding that noise level at the site was severe enough to be intolerable. This standard is based on the severity of the loss rather than the failure of duty. It became easier for plaintiffs to prove the cause of action under this interpretation. The consequence of the ruling of these two cases is 'rush to the courtroom' by the local people at similar situations. The ruling of these two cases was not appropriate both in theory and in consequence. The Korean tort system is basically based on the theory of negligence. Strict liability is exceptional only when there is special legislation. The Court created strict liability rule by interpreting the Art. V of the National Compensation Act. This is against the proper role of the court. The result of the cases is also dismal. The government was already sued by a number of local people for damages. Especially the Department of Defense which is operating many airports nationwide has financial hardship, which will cause downsizing military practice by the Air Force in the long run, This is no good to anyone. Tens of millions of dollars which might be used for compensation might be better used to prevent further noise problem surrounding airports.

• Journal of Venture Innovation
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• v.4 no.3
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• pp.141-150
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• 2021

Although management decisions centered on the board of directors and directors must be made in order to effectively promote ESG management, the company's management is not obligated to make decisions considering ESG factors. A Korean corporation(company) is an established organization for commercial or other profit, and the purpose of treating a legal organization as a corporation is to easily handle the legal relationship of a group (corporate's property) and individual property of a group member, but legal person such as rights to "harm public rights" or "defend fraud". Criminal liability for illegal acts of a corporation, but the liability of a corporation (natural person) for illegal acts of a corporation is recognized within a limited range, but the criminal liability of a corporation (natural person) is limited. As the social responsibility of a corporation is great, limiting the responsibility of a corporation-related person (natural person) to civil responsibility will halve its effectiveness if considering the impact on the corporation's national economy. Objective requirements such as the completeness of control, hybridization of property, infringement of creditors' rights, and small-capitalization, and the subjective intention of abusing the company system to avoid legal application to controlling shareholders should be denied. Despite the increasing influence on corporate society, such as large-scale projects and astronomical business profits, corporate officials (natural persons) are forced to be held liable for negligence and intentional liability within a limited range. In such cases, it is necessary to introduce criminal responsibility separately from civil responsibility to legal persons (natural persons) in consideration of the maturity of capitalism in Korean society and the economic status of the world. In Korea, the requirements for recognition of corporate denial are strict, but the United States says that it is sufficient to have control or fraud. Therefore, it is not about civil responsibility, but about criminal responsibility of a legal person (natural person), so if fraud is recognized, it can strengthen the corporate social responsibility.

• The Korean Journal of Air & Space Law and Policy
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• v.32 no.1
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• pp.3-51
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• 2017

From a historical point of view, while the Warsaw Convention was passed in 1924 to regulate the unified judicial responsibility in the global air transportation industry, protection of airline consumers was somewhat lacking in protecting air carriers. In principle, the air carrier does not bear any obligation or liability when the aircraft is not operated normally due to natural disasters such as typhoon or heavy snowfall. However, in recent years, in developed countries such as the US and Europe, there has been a movement in which regulates the air carriers' obligation to protect their passengers even if there is no misconduct or negligence. Furthermore, the legislation of such advanced countries imposes an obligation on the airlines to compensate the loss separately from damages in case the abnormal operation of the aircraft is not caused by force majeure but caused by their negligence. Under this historical and international context, Korea is also modifying the system of aviation consumer protection by referring to other foreign legislation. However, when compared with foreign countries, our norm has a few drawbacks. First, the airline's protection or care obligations are mixed with the legal liability for damages in the provision, which seems to be due to the lack of understanding of the airline's passenger protection obligation. The liability for damages, which is governed by the International Convention or the Commercial Act, shall be determined by judging the cause of the airline's liability in respect of the damage of the individual passenger in the course of the air transportation. However, the duty to care and the burden for compensation shall be granted to all passengers who feel uncomfortable with the abnormal operation regardless of the cause of the accident. Also, our compensation system for denied boarding due to oversale is too low compared to the case of foreign countries, and setting the compensation amount range differently based on the time for the re-routing is somewhat unclear. Regarding checked-baggage claim, it will be necessary to refund the fee only from the fact that the baggage is delayed without asking whether there is any damage occurred from the delayed baggage. This is the content of the duty to care, which is different from the current Commercial Act or the international convention, in which responsibility is different depending on whether the airline takes all the necessary measures in order to prevent delaying of the baggage. The content of force majeure, which is a requirement for exemption from the obligation to care passengers on the airplane, shall be reconsidered. Maintenance for safe navigation is not considered to be included in force majeure, and connection to airplanes, airport conditions are disputable. According to the EC Regulation, if the cause of the abnormal operation of the airline is force majeure, the airline's compensation obligation is exempted but the duty to care of airline company is still meaningful. Furthermore, even if the main role of aviation consumer protection is on an airline, it is the responsibility of government agencies to supervise the fulfillment of such protection obligations. Therefore, it is necessary for the Korean government to actively take measures such as enforcing incentives for airlines that faithfully fulfill their obligation to care and imposed penalties on the contrary.

• KSCE Journal of Civil and Environmental Engineering Research
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• v.39 no.4
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• pp.505-512
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• 2019

This study is a basic study to prepare safety measures for the tram that is being introduced into Korea by reviewing accident analysis and accident compensation system of the tram. Analysis of accident characteristics of the tram was analyzed based on overseas data. Five years after the inauguration of the tram, accidents were halved and stabilized. Deaths accounted for 0.5 % of all casualties, most accidents were minor. Accidents with other mean transportation were high 84.1 %, among them accidents with passenger cars was found to be highest. The frequent points of accidents were analyzed as intersections and tram stop, and measures for pedestrian accidents were found to be important. Those are proposed safety measures through analyzing tram accident characteristics: Monitoring accidents which occur within five years of its inauguration, developing accident database input system, installation of fences for preventing people from jaywalking, operating traffic signal for preventing people from jaywalking through connection of pedestrian signals and tram signals, clamping down on illegal U-turn cars and jaywalking pedestrian, Also, those are proposed accident treatment measures based on general driver receptively and overseas data: property damage liability coverage (PI) of car insurance, comparative negligence when the accident occurs between car and tram.

• Proceedings of the Korean Institute Of Construction Engineering and Management
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• autumn
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• pp.300-305
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• 2002

The construction project is a complex undertaking involving multiple participants. Conflicts are inherently natural in the construction projects and subsequently, a success of projects mainly depends on how well to cope with the conflicts. In the past, courts usually took the position that the professional's exposure in damages for negligent performance of any of his/her duties would not extend to strangers to the contractual arrangement. However, courts today generally reject that rationale which was earlier in vogue and protect architects, engineers, and contractors from being liable to third parties. It means that the lack of privity of contract could rarely protect a profession in a suit alleging the negligence or professional malpractice in preparing plans or specifications. The main goal of this paper is to enhance the understanding of the legal aspect of privity and to provide the trend of no-privity disputes through the analysis of lawsuit cases during the last 40 years. On the base of the analysis, importance of the third relationship and the liability in construction disputes is presented.

• Asia-pacific Journal of Multimedia Services Convergent with Art, Humanities, and Sociology
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• v.6 no.7
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• pp.17-26
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• 2016

Information spill was occurred several times in the country due to the negligence of the large internet service providers including SK Communications, Auction, KT. In order to judge the Internet Service Provider(ISP)'s liability in individual data spill caused by hacking, the violation of existing legislation or general principle of law's good faith principle has to be examined. However, based on current ISP's good faith principle, there is no objective standard for judging liability. Such uncertain range of protection action duty based on good faith principle generates complaint toward companies, therefore presentation of objective judgement range index on how to determine this range is needed. However due to the legal characteristic of above-mentioned law, it is not possible to fix the range of protection action duty and regulate it on law. In order to resolve this, rather than concerning simply on legal system level, fusion approach method is needed. Thus, this research will discuss the measure for objective standard for predicting ISP's range of protection action duty through fusion view dividing in technical, legal and administrative aspects.

• International Commerce and Information Review
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• v.15 no.2
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• pp.285-313
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• 2013

By the revision of the Commercial Code of Korea in 1991 and 2007, some provisions for the regulation of Time Charterparty have been introduced into our own maritime law system. But, those provisions are in their nature mainly the reproduction of the provisions prescribed in the standard forms of time charterparty which are widely used, such as BALTIME Charter and NYPE Form, and the subject matters of their regulation are restrictive, so that the applicability of the provisions is not desirable. The cargo is lost or damaged, the cargo owner should seek compensation form, or sue, the carrier as, traditionally, under the COGSA, the cargo carrier is responsible for loss of damage of cargo. However, it is difficult to determine who is the responsible carrier under charters. There is no test to determine the carrier, but the courts in every country generally consider the bill of lading. Although the master has general authority to sign bills of lading on behalf of the shipowner, he can also sign bills of lading for, and on behalf of, the charterer. In this case, the charter is considered the carrier. Furthermore, the charterer is authorized to contract with third parties on behalf of the shipowner and, as such, the responsible carrier is the shipowner. Therefore, when determining the carrier we should examine carefully the all factors and the circumstances surrounding the case. Also, negligence of a captain of a time-chartered ship causing damages to a third party. It will analyze the legal character of a time-charter contract, review judicial precedents on time-charter. The Inter-Club Agreement was drawn up and is intended to be a somewhat easier way of allocating liability for cargo claims between owners and charterers and, although there is still scope for disputes to arise, the Inter-Club Agreement does in fact to some extent make the allocation of liabilities for cargo claims easier. Finally, it will also make legislative suggestions to resolve complex issues involving maritime transportation contracts under the current Commercial Code.

• Korean Journal of Construction Engineering and Management
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• v.12 no.1
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• pp.97-106
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• 2011

Construction Management is the overall management of the project as construction manager and the owner are united together. Construction manager's role is to conduct the overall or partial construction administration in the 'design, bid, build' process, in the owner's interests with maintaining technical neutrality. Construction manager is becoming one of new professionals in the building process and the contract defines their roles and the range of services, so high level of ethnics are required. This study suggests the legal status of the construction manager and the ethnic standards and the ethnic's characteristics. In conclusion, firstly, the legal characteristics of the administration of construction management are the delegations contract, the responsibility of negligence and the duty of due diligence, abided by the contract that ties between the owner and the construction manger. Secondly, the administerial characteristics of the construction management are the role of mediator, the service of professional technology, accountability to the owner and publicness. Thirdly, due to these characteristics, as a professional, the standard of ethnic assessment for the construction project manager are intention, act and result, so with the relation to that, morality, deontology and consequentialism have been suggested in this study.

• The Korean Society of Law and Medicine
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• v.17 no.1
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• pp.299-346
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• 2016

There were also various decisions made in medical area in 2015. In the case that an inmate in a sanatorium was injured due to the reason which can be attributable to the sanatorium and the social welfare foundation that operates the sanatorium request treatment of the patient, the court set the standard of fixation of a party in medical contract. In the case that the family of the patient who was declared brain dead required withdrawal of meaningless life sustaining treatment but the hospital rejected and continued the treatment, the court made a decision regarding chargeable fee for such treatment. When it comes to the eye brightening operation which received measure of suspension from the Ministry of Health and Welfare for the first time in February, 2011, because of uncertainty of its safety, the court did not accept the illegality of such operation itself, however, ordered compensation of the whole damage based on the violation of liability for explanation, which is the omission of explanation about the fact that the cost-effectiveness is not sure as it is still in clinical test stage. There were numerous cases that courts actively acknowledged malpractices; in the cases of paresis syndrome after back surgery, quite a few malpractices during the surgery were acknowledged by the court and in the case of nosocomial infection, hospital's negligence to cause such nosocomial infection was acknowledged by the court. There was a decision which acknowledged malpractice by distinguishing the duty of installation of emergency equipment according to the Emergency Medical Service Act and duty of emergency measure in emergency situations, and a decision which acknowledged negligence of a hospital if the hospital did not take appropriate measures, although it was a very rare disease. In connection with the scope of compensation for damage, there were decisions which comply with substantive truth such as; a court applied different labor ability loss rate as the labor ability loss rate decreased after result of reappraisal of physical ability in appeal compared to the one in the first trial, and a court acknowledged lower labor ability loss rate than the result of appraisal of physical ability considering the condition of a patient, etc. In the event of any damage caused by malpractice, in regard to whether there is a limitation on liability in fee charge after such medical malpractice, the court rejected the hospital's claim for setoff saying that if the hospital only continued treatments to cure the patient or prevent aggravation of disease, the hospital cannot charge Medical bills to the patient. In regard to the provision of the Medical Law that prohibit medical advertisement which was not reviewed preliminarily and punish the violation of such, a decision of unconstitutionality was made as it is a precensorship by an administrative agency as the deliberative bodies such as Korean Medical Association, etc. cannot be denied to be considered as administrative bodies. When it comes to the issue whether PRP treatment, which is commonly performed clinically, should be considered as legally determined uninsured treatment, the court made it clear that legally determined uninsured treatment should not be decided by theoretical possibility or actual implementation but should be acknowledged its medical safety and effectiveness and included in medical care or legally determined uninsured treatment. Moreover, court acknowledged the illegality of investigation method or process in the administrative litigation regarding evaluation of suitability of sanatorium, however, denied the compensation liability or restitution of unjust enrichment of the Health Insurance Review & Assessment Service and the National Health Insurance Corporation as the evaluation agents did not cause such violation intentionally or negligently. We hope there will be more decisions which are closer to substantive truth through clear legal principles in respect of variously arisen issues in the future.