• 의료법학
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• 제10권2호
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• pp.85-113
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• 2009

In this paper, the Judgment 2007DA76290 of the Korean Supreme Court was analysed in two points of the legal theory and litigation. The judgment arouses some issues of medical malpractice liability. They includes the concept of the complications and permanent lesion and the difference between them, some problems in a judge's applying the requirements for the physician's tort liability to the medical malpractice situations, the theory of obligation de moyens related with the burden of proof of the negligent conduct for a physician's liability for misperformance of contract, the influence of a patient's physical conditions on the physician's liability, the breach of duty to disclose in selecting the safer one of the treatment methods bringing about the complications or leaving the permanent lesion and so on. In the situations of the case referred to above, the plaintiff should have tried to establish that a reasonable physician in the specific situation of the case would have substituted the safer method of treatment for the method in the case. If the plaintiff had succeeded in establishing it, he or she could have recovered even the physical harm resulting from the permanent lesion brought about by the complications of the specific treatment in the case. The plaintiff failed to do so and recovered only the emotional distress which the patient suffered owing to the physician's breach of the duty to disclose. Therefore the legal malpractice of the counsel might be found in this case.

• 항공우주정책ㆍ법학회지
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• 제22권2호
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• pp.27-51
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• 2007

The cumulative result of the work by the ICAO Secretariat, the Secretariat Study Group and the Council Special Group on the Modernization of the Rome Convention of 1952 are two draft Conventions, namely: "Draft Convention on Compensation for Damage Caused by Aircraft to Third Parties, in case of Unlawful Interference", and "Draft Convention on Compensation for Damage Caused by Aircraft to Third Parties" The core provisions of the former draft Convention are as follows: The liability of the operator is strict, that is, without the necessity of proof of fault. It would be liable for damage sustained by third parties on condition only that the damage was caused by an aircraft in flight(Article 3). However, such liability is caped based on the weight of the aircraft(Article 4). It is envisaged to create an independent organization called the Supplementary Compensation Mechanism, with the principle purpose to pay compensation to persons suffering damage in the territory of a State Party, and to provide financial support(Article 8). Compensation shall be paid by the SCM to the extent that the total amount of damages exceeds the Article 4 limits(Article 19). The main issues on the farmer draft Convention are relating to breaking away from Montreal Convention 1999, no limits on individual claims but a global limitation on air carrier liability, insurance coverage, cap of operators' strict liability, and Supplementary Compensation Mechanism. The core provisions of the latter draft Convention are as follows: the liability of the operator is strict, up to a certain threshold tentatively set at 250,000 to 500,000 SDRs. Beyond that, the operator is liable for all damages unless it proves that such damage were not due to its negligence or that the damages were solely due to the negligence of another person(Article 3). The provisions relating to the SCM and compensation thereunder do not operate under this Convention, as the operator is potentially for the full amount of damages caused. The main issues on the latter draft Convention are relating to liability limit of operator, and definition of general risks. In conclusion, we urge ICAO to move forward expeditiously on the draft Convention to establish a third party liability and compensation system that can stand ready to protect both third party victims and the aviation industry before another 9/11-scale event occurs.

• 무역상무연구
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• 제53권
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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.

• 의료법학
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• 제17권2호
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• pp.3-28
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• 2016

민사법에서 제조물 책임이 전문용어로 정착된 반면, 형사법에서는 일반적으로 받아들여진 전문용어는 없다. 민사법에서 제조물책임과 달리 형사책임에서는 개개인의 책임성과 규범질서의 장애가 중요하다. 즉 구체적인 개개인의 의무위반행위가 그리고 제조물이 법익위태화 또는 법익침해라는 결과를 야기했다는 인과관계가 입증되어야 한다. 형법에서 제조물 책임은 일반 거동범을 제외하고는 상해죄 또는 과실치상죄, 살인죄 또는 과실치사죄가 주로 문제가 된다. 물론 결과발생과 관련된 행위가 작위인지 부작위인지 구별되어야 하고, 그 행위와 결과사이에 인과관계가 입증되어야 하며, 고의 혹은 과실도 인정되어야 한다. 이 글에서는 우리나라, 독일, 스페인 등에서 실제로 문제가 되었던 판례들을 분석하여 인과관계의 확정에서 드러난 문제점을 중심으로, 특히 제조물과 관련된 형사책임을 인정하기 위한 핵심문제인 인과관계의 문제를 중심으로 살펴보았다. 이 글에서는 인과관계의 검토단계를 자연과학적 인과법칙과 규범적 인과관계로 나누어 2단계로 검토하는 견해를 따랐다. 이 절차에 따른 제조물의 형사책임을 인정하기 위한 인과관계의 입증은 우선 그 제조물의 특정물질이 결과발생을 야기할 수 있는 일반적인 위험성이 있어야 하고, 그것을 전제로만 구체적인 사안에서 인과관계의 검토가 의미가 있는 것으로 보았다. 일부 판례와 학설에서 나타나는 것처럼, 일반적 인과관계 자체가 전혀 존재하지 않는 경우에도 자유심증에 의해 구체적 인과관계를 확정한다고 하더라도 일반적 인과법칙에 반하는 것이 아니며, 법관의 심증을 경험법칙보다 우위에 놓은 것도 아니므로 구체적 인과관계의 인정이 가능하다는 견해가 있다. 하지만 이 글은 구체적 인과관계를 인정하기 위한 전제인 객관적이고 합리적으로 의심없는 인과법칙이 존재하지 않는다면 법관은 "의심스러울 때는 피고인의 이익으로(in dubio pro reo)" 원칙에 따라 무죄를 선고해야 하며, 사실상 입증책임의 전환의 효과가 있는 자유심증이라는 방식으로 객관적으로 입증되지 않는 사실에 대한 부담을 피고인이 지도록 하는 것은 허용되지 않는다는 입장을 취하였다. 법관의 임무는 인과관계가 100% 확실하다는 데 대한 합리적 의심이 없어야 한다는 것으로 보기 때문에 인과관계를 추정하는 것이지만, 일반적 인과관계가 100% 확실한 것을 의미하는 것이 아니라 통계적으로 유미의한 인과관계가 있다는 점을 인정하는 것이 라는 점을 강조하였다.

• 무역상무연구
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• 제13권
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• pp.469-492
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• 2000

"International Safety Management(ISM) Code" means the International Management Code for the Safe Operation of Ships and for Pollution Prevention as adopted by the Assembly, as may be amended by the International Maritime Organization. This Code have brought into force internationally since 1th July, 1998 by incorporated to the new Chapter Ⅸ in the SOLAS Convention. Accordingly those States which give effect to the SOLAS Convention will have to ensure that rules giving effect to the Code are introduced into their domestic legislation. The purpose of this Code is to provide an international standard for the safe management and operation of ships and for pollution prevention, by this to reduce the maritime casualty which could caused by neglect of person. To achieve this purpose the ISM Code specifies a number of broad 'safety management objectives' for owning or operation companies, and it requires that such companies should establish, implementing and maintain a written Safety Management System(SMS) covering a whole range of safety environmental and related matters. These requirements of the Code could effect on the carrier in some points such as duty of due diligence to care for cargo, due diligence to make the vessel seaworthy and burden of proof etc. In this respect, We should know that the ISM Code could effect on the carrier advantageously or disadvantageously subject to whether the carrier observed the requirement of the ISM Code. Although it does not add cause of liability or increase limitation of liability imposed to the carrier.

• 의료법학
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• 제11권2호
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• pp.149-179
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• 2010

In November 2007, the Korean Constiutional Court held that a joint penal provision in which the individual employer is punished when his or her employee is determined to have committed a crime was unconstitutional, because the joint penal provision had no contents for the culpability of an individual employer and thus violated the constitutionally protected principle of culpability. After the Korean Constitutional Court's judgment, since December 2008 the Ministry of Justice began to change the old joint penal provision into the new revised joint penal provision. On January 2010, the old joint penal provisions of 110 laws were revised. The new revised joint penal provision adds only an additional sentence: "If a juristic person, an entity or an individual perform due care and supervision over its employee for the prevention of such a crime, it will be exempted from the punishment". But an presumption of negligence clause that is added in the new revised joint penal provision is still vacuum in concerned with supervision responsibility. Probably the new form of penal provision, that is understood to be a kind of the presumption of negligence, could let the burden of proof be changed from the public prosecutor to the accused, in other words employer-side. Especially, when joint penal provision is applied to hospital as administrative punishment, according to the hospital is a (juridical) foundation or not, the application of the joint penal provision is different and unfaithful. In my opinion, therefore, a corporation liability could be considered according to various liability of employee's business and the crime its employee committed because of an organizational failure of the corporation.

• 항공우주정책ㆍ법학회지
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• 제5권
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• pp.119-169
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• 1993

In this article the present writers have surveyed recent cases on Warsaw Convention especially on the cases emerged in the years between 1986 to 1993. The cases before 1986 were discussed already in the book titled "Liability of International Air Carrier," written by Professor Choi, published in Seoul 1986. In this article the writers have reviewed most of the American cases and some cases from the courts of Germany, France and England. Main subjects which were discussed herein were as follows: Liability of air carriers in Warsaw Convention carriage 1. Exclusivity of the Warsaw Convention as a remedy 2. Warsaw Jurisdiction 3. The scope of the Warsaw Convention's definition of "Accident" under Article 17 of the Warsaw Convention (1) Mental anguish (2) Unusual or unexpected events 4. Adequacy of notice of the limitation of liability to passengers for injuries and death 5. Damages recoverable, punitive damages and burden of proof 6. The wilful misconduct exception; definition of wilful misconduct 7. Cargo and passenger baggage 8. Time limitation of actions After examining articles published world-wide, this article compiles and analyses recent cases involving the Warsaw Convention system. As Warsaw System is based on international convention, maintaining uniformity in interpretation is of utmost importance. Therefore, this type of study is essential for resolving air-transportation disputes in Korea. This article examines the current state and recommends the desired course for the Warsaw Convention. The writers hope that this article is helpful to the Korean courts and those in the air-transportation industry in interpreting the Warsaw Convention.

• 한국환경보건학회지
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• 제42권6호
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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.

• 의료법학
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• 제13권1호
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• pp.199-247
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• 2012

According to the review and analysis of medical cases that are assigned to the Supreme Court and all local High Court in 2011 and that are presented in the media, it was found that the following categories were taken seriously, medical and pharmaceutical product liability, the third principle of trust between medical institutions, negligence and causation estimation, responsibility limit, the meaning of medical records and related judgment of disturbed substantiation, Oriental doctors' duties to explain the procedures, IMS events, whether one can claim for each medical care operated by non-physician health care institutions to the nonmedical domain in the National Health Insurance Corporation, and the basis of norms for each claim. In the cases related to medical pharmaceutical product liability, Supreme Court alleviated burden of proof for accidents with medical and pharmaceutical products prior to the practice of Product Liability Law and onset the point of negative prescription as the time of damage strikes to condition feasibility of the specific situation. In the cases related to the 3rd principle of trust between medical institutions, the Supreme Court refused to sentence the doctor who has trusted the judgment of the same third-party doctors the violations of the care duty. With respect to proof of a causal relationship and damages in a medical negligence case, the Supreme Court decided that it is unjust to deny negligence by the materials of causal relationship rejecting the original verdict and clarified that the causal relationship shall not deny the reasons to limit doctors' responsibilities. In order not put burden on patients with disadvantages in which medical records and the description of the practice or the most fundamental and important evidence to prove negligence and causation are being neglected, the Supreme Court admitted in the hospital's responsibility for the case of the neonate death of suffocation without properly listed fetal heart rate and uterine contraction monitor. On the other hand, the Seoul Western District Court has admitted alimony for altering and forging medical records. With respect to doctors' obligations to description, the Supreme Court decided that it is necessary to explain the foreseen risks by the combination of oriental and western medicines emphasizing the right of patient's self-determination. However, questions have arisen whether it is realistically feasible or not. In a case of an unlicensed doctor performing intramuscular stimulation treatment (IMS), the Supreme Court put off its decision if it was an unlicensed medical practice as to put limitation of eastern and western medical practices, but it declared that IMS practice was an acupuncture treatment therefore the plaintiff's conduct being an illegal act. In the future, clear judgment on this matter should be made. With respect to the claim of bills from non-physical health care institutions, the Supreme Court decided to void it for the implementation of the arrangement is contrary to the commitments made in the medical law and therefore, it is invalid to claim. In addition, contrast to the private healthcare professionals, who are subject to redemption according to the National Healthcare Insurance Law, the Seoul High Court explicitly confirmed that the non-professionals who receive the tort operating profit must return the unjust enrichment and have the liability for damages. As mentioned above, a relatively wide range of topics were discussed in medical field of 2011. In Korea's health care environment undergoing complex changes day by day, it is expected to see more diverse and in-depth discussions striding out to the development in the field of health care.

• Journal of Korea Trade
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• 제25권2호
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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.