• The Korean Society of Law and Medicine
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• v.14 no.2
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• pp.281-313
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• 2013

A physician has to do his best for the better treatment of his patiensts. But, if a physician cannot remedy his patients because of the lack of hospital facilities, the lack of medical knowledge and etc., the physician must transfer his patients to another suitable hospital immediately. This is called the duty of interhospital transfer of patients. The necessity of interhospital transfer of patients is primarily ocurred in emergency medical care situations. The Supreme Court Decision 2010DO7070 delivered on April 29, 2010 is one of the important decisions related to the duty of interhospital transfer of patients. The Supreme Court ruled that there were the physician's medical malpractice and the causation between the physician's medical malpractice and the death of patient, as the physician has left the patient without due observations for 1 hour and 30 minutes after the caesarean operation inspite of mass bleeding during the operation, and has transferred the patient to another suitable hospital later. And the Supreme Court ruled that the transferring physician has to explain the situation of the patient in detail to the physician being transferred. I agree with the Supreme Court Decision. As decided by the Supreme Court, physicians will treat their patients more carefully and in case of necessity for transfer, physicians will transfer their patients with more caustion. However, the study for this issue should be continued hereafter because concrete standards are not given to lawers and physicians just by the Supreme Court Decisions itself.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.68
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• pp.43-63
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• 2015

The number of final appeal(the rate of final appeal: 43%) has been on the increase every year over the past ten years in Korea. The number of final appeal cases given to a justice of the Korean Supreme Court amounts to nearly one everyday, which makes it vulnerable to faulty decisions. Reversal rate of final appeal is as low as 10% with most of the cases being dismissed and hence the percentage of people having trust in the judiciary is merely 27%. In this context, the Korean judiciary has announced its plan to set up a final appellate court in the Supreme Court. The establishment of final appellate court, however, is not only against the Constitution but also hardly seen in other nations. It would only overexpand the Supreme Court. Furthermore, the final appellate court would end up deteriorating into the court of fourth instance and impose extra burden on the government as well as on the disputing parties. Therefore, it is necessary to upgrade the quality of the court by increasing the number of judges in the lower court and let them focus on the fact finding process. Facilitating the ADR(Alternative Dispute Resolution) process such as arbitration would help improve the structure of the judiciary. The incompatibility among the four values of the dispute resolution process(equitability, truth, quickness and efficiency) calls for building comprehensive judicial system in which disputes are settled by choosing either jurisprudence or utility.

• Journal of Arbitration Studies
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• v.31 no.3
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• pp.25-42
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• 2021

Arbitration is an alternative dispute resolution mechanism based on the parties' agreement to resolve any disputes parties may have by arbitration rather than litigation in court. Parties' consent to arbitrate, which must be manifest in the parties' arbitration clause or agreement, is the foundation for arbitration; thus, the language of an arbitration agreement is often of utmost importance in determining the intent of the parties regarding many aspects of arbitration proceedings, such as, the scope of arbitral proceedings, arbitral seat, and authority of arbitral tribunals, among others. Recently, the U.S. Supreme Court held in Lamps Plus, Inc. v. Varela (2019) that ambiguity in arbitration agreement as to availability of class arbitration should be resolved in favor of individual arbitration, and therefore, class arbitration would be precluded. Such holding was met with criticism by four separate dissenting opinions, in which the dissenting Justices have disagreed with the majority's interpretation of the arbitration agreement at issue, as well as, its rejection of application of state law in resolving contractual ambiguity. This article analyzes the Supreme Court's decision and reviews the Court's approach in construction of the arbitration agreement. Nevertheless, because the Supreme Court declined to provide clear guidelines as to precisely what contractual basis is required to permit class arbitration, either silence or ambiguity in arbitration agreements will be resolved by disallowing class arbitration.

• Journal of Arbitration Studies
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• v.30 no.1
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• pp.161-184
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• 2020

In the process of the annulment of arbitral awards, the Swiss Federal Supreme Court contributes to keeping Switzerland as a venue for international arbitration. Challenges to an award rendered in Switzerland are handled by the Swiss Supreme Court only. Furthermore, the Swiss law provides extremely limited grounds (PILA 190) for the potential challenge of the award and those are different from what model law countries have. For example, violations of the parties' agreed procedural arrangements will not be grounds for the annulment of an award in Swiss. In arbitration, the intervention of a national court is necessary to protect justice but at the same time, it can impede the process of arbitration, even making it useless. Limited intervention of the Swiss Supreme Court protects the efficiency, autonomy, and justice of international arbitration. International Arbitration has to be simple and fast to solve complex international commercial problems and to promote trade. Therefore, the process and technique to be applied on an Arbitration-friendly Swiss court should be considered.

• Journal of Arbitration Studies
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• v.26 no.1
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• pp.29-51
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• 2016

This paper reviews the Supreme Court decision of the United Kingdom in Jivraj v. Hashwani (2011) concerning the employment issue of arbitrators, falling within the exception of genuine occupational requirement under the Employment Equality (Religion or Belief) Regulations 2003, and nationality of arbitrators. In 2011, the Supreme Court of the United Kingdom delivered its judgment in Jivraj v. Hashwani, unanimously overturning decision of the English Court of Appeal. The facts of this case and the decision of the Court of Appeal have been widely discussed. The decision of the Supreme Court has been met with approval within the international arbitration community in London, having restored the legal position to that prior to the Court of Appeal's ruling. Thus, the Supreme Court unanimously overturned the Court of Appeal's finding that arbitrators are the employees of the arbitrating parties. Arbitrators were held to be genuinely self-employed, and therefore outside the scope of the Regulations or Equality Act(2010). As such, the anti-discrimination provisions are not applicable to the selection, engagement or appointment of arbitrators. Most importantly, the Supreme Court's finding that arbitrators are not employees removes the possibility of challenges to arbitration agreements on the grounds that they are in breach of the Equality Act. As a practical matter, parties no longer need to consider carving out nationality provisions when drafting arbitration agreements.

• The Korean Society of Law and Medicine
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• v.14 no.2
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• pp.173-214
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• 2013

Traditionally, the Supreme Court has held that medical treatment agreements covered by national health insurance should be distinguished from other medical treatment agreements which are viewed as a consummation of the autonomous free will between doctor and patient. Namely, the Supreme Court views medical treatment agreements covered by national health insurance to be bound by the National Health Insurance Law with the intent to promote the applicability and comprehensiveness of the national health insurance scheme. Yet, issues of voluntary non-reimbursable treatments are triggered not only by the mistakes or moral hazard of medical care institutions but also by systemic limitations of national health insurance coverage criteria. Thus, there is a need for legislative measures that allow certain medical treatments to be included or reflected in the national health insurance coverage system so that patients may receive prompt and flexible medical treatments. To reflect such concerns, the Supreme Court made an exception for voluntary non-reimbursable treatments and developed a strict test to be applied in such cases in Supreme Court Judgment 2010 Doo 27639, 27646 (ruled on June 8, 2012 by the Grand Bench). Such judgment, however, is not a fundamental overturn of the Supreme Court's prior rulings that voluntary non-reimbursable treatments are not allowed under the law. It is only a slight revision of its previous stance for cases in which there is a lack of legislative measures to make coverage of a new yet valid medical treatment possible under the current national health insurance coverage system.

• Korea Trade Review
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• v.47 no.5
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• pp.129-145
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• 2022

Recently, Korean customs authorities have attempted to impose customs duties on the warranty charges paid by Korean subsidiaries ("the taxpayers") of multinational corporations to their overseas headquarters, or their affiliates, as indirect payment of the price actually paid or payable for imported goods and services, and the taxpayers' complaints have been steadily increasing. The key issue of Korean Supreme Court decision, 2018Du56619, revolves around opposing interpretations of the Korea Customs Act and the WTO's Customs Valuation Agreement in determining who is responsible for paying duties levied on warranty charges. The Supreme Court's ruling was consistent with its previous interpretations of the WTO agreement on customs valuations. The Supreme Court ruled in favor of the plaintiff, a Korean subsidiary, stating that the overseas corporate headquarters' payments of warranty charges to Korean dealers are made on behalf of the Korean subsidiary, which is ultimately responsible for covering warranty charges. Thus, the Korean subsidiary's settlement of the warranty charges to their Korean dealers through the overseas headquarters is effectively the same as a direct payment to the dealers. Therefore, the Korean subsidiary performed warranty services on its liability and account. As such, the court ruled that warranty charges should not include tariffs on the indirect payment for warranty services in such cases. This paper presents the comparative legal implications for the warranty charge clauses in the WTO agreement and the Korean Customs Act and analyzes the Supreme Court's decisions.

• The Korean Society of Law and Medicine
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• v.24 no.3
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• pp.125-153
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• 2023

The Supreme Court's en banc decision on December 12, 2022 (docket number 2016Do21314) presented a new standard for determining whether the use of diagnostic medical devices by Korean medical doctors constitutes oriental medical doctors constitutes unlicensed medical practice. Based on this standard, it was determined that the use of ultrasound by Korean medical doctors was not an unlicensed medical practice. Supreme Court's Decision 2016Du51405 on August 18, 2023, is the first case in which a new standard was applied to determine that an Korean medical doctor's use of electroencephalography to diagnose Parkinson's disease and dementia was not an unlicensed medical practice. The Supreme Court abolished the previous standard that Western medical knowledge and technology should not be required for Korean medical doctors to use medical devices. However, it was unclear whether Western medical diagnosis of Korean medical doctors using diagnostic medical devices would be viewed as an an auxiliary method of diagnosis. Parkinson's disease and dementia are Western medical diagnoses. The Supreme Court judged that the Western medical diagnosis of Korean medical doctors was not an unlicensed medical practice. This clearly explains what an auxiliary method of diagnosis means. In addition, the Supreme Court excluded the principles of development and production of electroencephalography from its judgment criteria. Automatic extraction and automatic reading of test results were also excluded. The criminal court's view that the meaning of oriental medical practice should be clearly and strictly interpreted from the perspective of an oriental doctor, and it was clarified that diagnostic medical devices were excluded from criminal punishment unless it was clear that they were not related to the principle of oriental medical practice. As a result, the Supreme Court made it clear that the use of diagnostic medical devices is excluded from criminal punishment unless it is clear that they are not related to the principles of Korean medicine.

• Journal of Arbitration Studies
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• v.19 no.3
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• pp.3-24
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• 2009

This article discusses the validity of selective/unilateral arbitration agreement that provides arbitration as one of several dispute resolution methods. The Supreme Court has held selective/unilateral arbitration agreement that is conditional invalidity since the judgement of 2003Da318 decided on Aug. 22, 2003: In the following judgements of 2004Da42166 decided on Nov. 11, 2004 and 2005Da12452 decided on May 27, 2005, the Court stated that the selective/unilateral arbitration agreement that stipulates to resolve a dispute through arbitration or mediation would be valid as an effective arbitration agreement only if a party elects and proceeds an arbitration proceeding and another party responses to the arbitration proceeding without any objection. The definition of arbitration agreement, the formation of selective/unilateral arbitration agreement, the summary of relative judgements and academic theories will be reviewed in order to examine the appropriateness of the series of judgements of the Supreme Court. Based on such reviews, this article will investigate the adequacy of the Supreme Court judgements from the perspectives of i) the principle of party autonomy, ii) the structure of dispute resolution methods, iii) legal provisions of Arbitration Act, iv) legal stability, and v) the policy to revitalize the use of arbitration. At conclusion, this article will suggest the change of precedents of the Supreme Court's judgements with regard to the selective arbitral agreement.

• Journal of Arbitration Studies
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• v.28 no.2
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• pp.217-248
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• 2018

This paper reviews the Supreme Court of Japan in Decision of December 12, 2017, 2016 (Kyo) 43 (2011) concerning arbitrator's duty of disclosure and reasonable investigation under the Japan Arbitration Act (Arbitration Act). The Supreme Court of Japan recently issued a precedential decision interpreting, for the first time, the arbitrator disclosure requirements of the Arbitration Act. Under Article 18(4) of the Arbitration Act, arbitrators have an ongoing obligation to disclose circumstances which may give rise to justifiable doubts as to their impartiality or independence. The Supreme Court held that Article 18(4) of the Arbitration Act - requiring arbitrators to disclose all "facts likely to give rise to doubts as to his/her impartiality or independence" - (1) is not satisfied by blanket disclosures or advance waivers of potential future conflicts, and (2) requires disclosure of facts both known to an arbitrator or "that can be normally ascertained by an investigation that is reasonably possible${\cdots}$" This new standard presents opportunities and challenges for enforcing arbitration awards in Japan, and suggests measures that both arbitrators and parties can use to protect their awards. Also, the Supreme Court's new standards for evaluating arbitrator conflict disclosures suggest some measures that both arbitrators and parties to arbitration in Japan can take to protect the enforceability of their awards. The key factual question posed by the Supreme Court's ruling was whether an arbitrator's conflicts check was reasonable. Maintaining records regarding a review of potential conflicts or any investigation provides a ready source of proof in case of a future challenge. The Supreme Court has spoken clearly that so-called advance waivers of potential conflicts are not effective under Japanese law. Instead, to the extent that potential conflicts arise during the course of arbitration, they should be specifically disclosed.