• Journal of Arbitration Studies
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• v.21 no.3
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• pp.3-20
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• 2011

An arbitrator is an impartial person chosen to decide the issue between parties engaged in a dispute. But the arbitrator appointed by a party or arbitration institution shall be impartial or independent and should disclose to the administrator any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. If, at any stage during the arbitration, new circumstances arise that may give rise to such doubts, the arbitrator shall promptly disclose such circumstances to the parties and to the administrator. Upon receipt of such information from an arbitrator or a party, an party must challenge any arbitrator whenever circumstances exist that give rise to justifiable doubts as to arbitrator's impartiality or independence. Under these circumstance, there were two cases declared by the Korean Supreme Court in relation to the cancellation of the arbitration award. One arbitral case was cancelled for the reason of the having been arbitral procedure without disclosure arbitrator's impartiality, and the other case was refused to cancel the ward for the reason of the having been arbitral procedure without challenge an arbitrator. There are not, however, the standard to decide what is definitely the arbitrator's impartiality or independence and the difference on qualification between arbitrator chosen by an party and neutral arbitrator in korean arbitration law and rules. Nevertheless, korean court require arbitrator to be impartial and independent and the arbitration parties to challenge arbitrator' impartiality or independence.

• Tuberculosis and Respiratory Diseases
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• v.58 no.3
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• pp.213-229
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• 2005

The first and the longest criminal indictment case of Korean medico-legal battle, so called BORAMAE Hospital Incident, was finally on its end by Korean Supreme Court's decision on June 24, 2004, after 7 years long legal dispute via Seoul District Court and Seoul Superior Appeal Court's decision. Boramae Hospital case was the first Korean legal case of Withdrawing Life-sustaining treatment of mechanical respirator on 58 years old Extradural Hematoma victim who was on Respirator under Coma after multi-organ failure postoperatively(APACHE II score: 34-39). Two physicians who have involved patient's care and had helped to make discharge the Near-death patient to home after repeated demand of patient's wife, due to economic reason, were sentenced as homicidal crime. This review article will discuss the following items with the review of US cases, Quinlan(1976), Nancy Cruzan(1990), Barber (1983), Helen Wanglie(1990), Baby K (1994) and Baby L cases, along with Official Statement of ATS and other Academic dignitaries of US and World.: [1] Details of Boramae Hospital incident, medical facts description and legal language of homicidal crime sentence. [2] The medical dispute about the legal misinterpretation of patient's clinical status, regarding the severity of the victim with multi-organs failure on Respirator under coma with least chance of recovery, less than 10% probability. [3] Case study of US, of similar situation. [4] Introduction of ATS official Statement on Withdrawing/ Withholding Life sustaining treatment. [5] Patient Autonomy as basic principle. [6] The procedural formality in Medical practise for keeping the legitimacy. [7] The definition of Medical Futility and its dispute. [8] Dying in Dignity and PAS(Physician Assisted Suicide)/and/or Euthanasia [9] The Korean version of "Dying in Dignity", based on the Supreme Court's decision of Boramae Hospital incident (2004.6.24.) [10] Summary and Author's Note for future prospects.

• The Korean Society of Law and Medicine
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• v.9 no.1
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• pp.197-257
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• 2008

Current crown law punishes crime related to unborn child with abortion crime. So we might think that any infringement on unborn child is pretty well protected. But, in terms of illegal abortion, a charge of injuring person and homicide, there are lots blind spots in punishing criminals. Especially, there are numerous unclear cases in illegal abortion. If a doctor killed an unborn child by accident in medical operations, we can't punish him because it was an accident. There still exist controversial cases such as, if an unborn child was somehow damaged and was dead after birth, or was born with disabilities, how are we supposed to punish that? Recently, in a case where a doctor left alone a mother who had a baby and the baby died, our Supreme Court of Korea (Supreme Court of Korea 2007.6.29 2005do 3832) had given a verdict of "not guilty". It looked like they were very fair with current crime law. But, we want this case to be investigated if there weren't any logical contradictions as well as concurrent translation within Constitution Law.

• Journal of Arbitration Studies
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• v.22 no.2
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• pp.53-77
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• 2012

Competence-competence refers to an arbitratorpower to determine whether he or she has jurisdiction to decide a controversy. Although arbitrators power to rule on their own jurisdiction is generally recognized throughout the world, in the United States, neither the courts nor legislative bodies have recognized its significance or the reasoning behind its widespread adoption. Section 3 of the Federal Arbitration Act (FAA) is notorious among arbitration statues for its failure to incorporate competence-competence. When courts rule on an issue of competence-competence, it is referred to as a question of who decides the arbitrability of the case. In the United States, the use of competence-competence as a term of art is still limited to scholarly writings. The answer to the competence-competence inquiry is found in an interpretation of section 3 of the FAA which empowers the courts to decide arbitrability issues. The cases of the Supreme Court and most commentators interpreted sections 2 and 3 of the FAA as conferring issues of arbitrability on the federal courts, including the ability to rule on the validity and scope of the arbitral agreement. Traditionally, United States courts have denied the competence-competence to arbitral tribunal. Recently, however, they have confounded the rules by placing primary importance on the arbitration agreement between the parties. The Supreme Court, in a series of cases, has underscored the necessity of giving full effect to the intentions of the parties as expressed in their agreement to arbitrate. The result of the Supreme Court's emphasis on contractualism in determining the issue of arbitrability is most evident in the Courtdecision in the First Options case. Under First Options, courts are to decide arbitrability issues unless there is a clear and unmistakable contractual assignment of these issues to the tribunal itself. The Court is appraised that it has attempted to compromise between contractual freedom in the arbitration setting and the rule of law that is necessary in a society that depends on the concept of ordered liberty. In the decision in Howsam, the Court clarified the definition of arbitrability by attempting to draw a clear line between questions of arbitrability that are to be decided by courts and those matters that bear on the allocation of decisions between courts and arbitrators but are not questions of arbitrability.

• The Korean Society of Law and Medicine
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• v.10 no.2
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• pp.309-341
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• 2009

According to a case of Supreme Court's Sentence No. 2009DA17417 (May 21, 2009), the Supreme Court judges that 'the right to life is the ultimate one of basic human rights stipulated in the Constitution, so it is required to very limitedly and conservatively determine whether to discontinue any medical practice on which patient's life depends directly.' In addition, the Supreme Court admits that 'only if a patient who comes to a fatal phase before death due to attack of any irreversible disease may execute his or her right of self-determination based on human respect and values and human right to pursue happiness, it is permissible to discontinue life-sustaining treatment for him or her, unless there is any special circumstance.' Furthermore, the Supreme Court finds that 'if a patient who is attacked by any irreversible disease informs medical personnel of his or her intention to agree on the refusal or discontinuance of life-sustaining treatment in advance of his or her potential irreversible loss of consciousness, it is justifiable that he or she already executes the right of self-determination according to prior medical instructions, unless there is any special circumstance where it is reasonably concluded that his or her physician is changed after prior medical instructions for him or her.' The Supreme Court also finds that 'if a patient remains at irreversible loss of consciousness without any prior medical instruction, he or she cannot express his or her intentions at all, so it is rational and complying with social norms to admit possibility of estimating his or her own intentions on withdrawal of life-sustaining treatment, provided that such a withdrawal of life-sustaining treatment meets his or her interests in view of his or her usual sense of values or beliefs and it is reasonably concluded that he or she could likely choose to discontinue life-sustaining treatment, even if he or she were given any chance to execute his or her right of self-determination.' This judgment is very significant in a sense that it suggests the reasonable orientation of solutions for issues posed concerning withdrawal of meaningless life-sustaining medical efforts. The issues concerning removal of medical instruments for meaningless life-sustaining treatment and discontinuance of such treatment in regard to medical treatment for terminal cases don't seem to be so much big deal when a patient has clear consciousness enough to express his or her intentions, but it counts that there is any issue regarding a patient who comes to irreversible loss of consciousness and cannot express his or her intentions. Therefore, it is required to develop an institutional instrument that allows relevant authority to estimate the scope of physician's medical duties for terminal patients as well as a patient's intentions to withdraw any meaningless treatment during his or her terminal phase involving loss of consciousness. However, Korean judicial authority has yet to clarify detailed cases where it is permissible to discontinue any life-sustaining treatment for a patient in accordance with his or her right of self-determination. In this context, it is inevitable and challenging to make better legislation to improve relevant systems concerning withdrawal of life-sustaining treatment. The State must assure the human basic rights for its citizens and needs to prepare a system to assure such basic rights through legislative efforts. In this sense, simply entrusting physician, patient or his or her family with any critical issue like the withdrawal of meaningless life-sustaining treatment, even without any reasonable standard established for such entrustment, means the neglect of official duties by the State. Nevertheless, this issue is not a matter that can be resolved simply by legislative efforts. In order for our society to accept judicial system for withdrawal of life-sustaining treatment, it is important to form a social consensus about this issue and also make proactive discussions on it from a variety of standpoints.

• Knowledge Management Research
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• v.22 no.3
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• pp.31-53
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• 2021

As a communication channel for individuals, social media is affecting various areas such as business, economy, politics, and society. One of the less-studied areas is the law. Therefore, this study collected various information from social media and analyzed its impacts on the legal decisions, especially the Supreme Court decisions in Korea. This study was conducted by compiling information from Internet news articles and public responses. We found that when the negative reactions from the public got higher, the trial duration until the supreme court making the final decisions became shorter. However, we were not able to find the significant relationship between social media reactions and dismissal of appeal nor annulment. Our study would contribute to the information systems and knowledge management research in a sense that the social analytics is applied to the area of legal decisions, instead of using conventional qualitative study methodology. Our study is also meaningful to the practitioners because that big data analytical business can be applied to the field of law by creating a new database for the emerging legal technology. Finally, law makers can think of a better way to standardize the legal decision process to minimize the reverse effects from social media.

• Journal of Arbitration Studies
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• v.23 no.1
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• pp.153-175
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• 2013

The issue of patent validity becomes a subject of dispute under the FTA and there is a definite difference of opinion between China, Japan, and Korea. In other words, the validity of a judgment on the patent was exclusively under the jurisdiction of the administrative agency at a particular patent office. Thus, the issue arises where there is a potential judgment on patent validity. In this case, the Supreme Court rather than the patent office can offer a judgment from a judicial institution and can make a judgment in the case of a medication. In China, however, the lowest possibility of judgment on patent validity is predicted to occur in judicial institutions. Such a judgment is recognized as the Grand Bench Decision in Korea, and the court can judge the patent validation rather than the patent office. That is just the case in the Kilby case-it is invalid for reasons obvious in Japan. Therefore, there is a substantial difference between the three countries. Especially in Japan, where after the Kilby case, they revised the patent law in 2004 to introduce Article 104-3, placing the judgment of patent validity in the court, even if the "Apparentness"is not requisite. Per this law, infringers can argue for patent invalidity not only the judgment of the patent invalidation but also the infringement lawsuit. From the point of view of Japan, Korea became the judgment of trademark validation by extension and obvious cases can become directly to judge through the Supreme Court about the right that needs to examinations and registrations. In terms of the mediation, it also provides a clue about the judgment of intellectual property validation and expands the scope of the mediation in the future. From now on, in order to have active mediation procedures in the three countries, China, Japan, and Korea would need to unify regulations and application scopes for mediation in the FTA negotiation and to look forward to achieve a vigorous mediation approach.

• The Korean Society of Law and Medicine
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• v.12 no.2
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• pp.65-117
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• 2011

This article analyzes the case (2008Da16776) which has the issue how patients have to prove causal relationship when patients claim against pharmaceutical companies alleging that patients were infected with virus due to contaminated blood products. The Supreme court held that: (1) if patients prove that they didn't have symptoms suggesting virus infection before administration of blood products, the virus infection had been confirmed after administration of blood products, and there were significant potential of contamination of the blood products with the virus, the defect in blood products or the negligence of pharmaceutical company in making blood products shall be presumed to cause the infection of the victim. (2) The pharmaceutical companies could reverse the presumption by proving the blood products were not contaminated, but the fact that the victims were treated with the blood products manufactured by other companies or had received blood transfusions is not enough to reverse the presumption. The case is the first decision whether the burden of proof about causal relationship could be reduced in pharmaceutical product liability lawsuit. Hereafter pharmaceutical product liability cases, it would be necessary to reduce the burden of proof about causal relationship in order to make substantive equality between patients and pharmaceutical companies.

• Korea Trade Review
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• v.44 no.6
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• pp.285-302
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• 2019

Good faith is difficult to define due to the facts that there is not an objective and concrete concept of good faith, and good faith in contracts for the international sale of goods is a principle that parties to the contract must act with sincerity as members of a social community. The Korean Supreme Court shall pay attention to setting the applicable standards that can be universally applied to good faith based on the self-established criteria. Through such effort, it is possible not only to realize the value of concrete validity pursued by the general clause of good faith but also to realize the value of legal stability by assuring the predictability of results when applying good faith. In the modern sense, it can be said that the arbitrary application of general rules rather than the escape and general clauses is a problematic situation in the application of good faith, but this problem can be solved by setting a reasonable standard of good faith. This paper studies good faith in the view of Korean law, international laws, and related cases in contract law. The purpose of this paper is to find the problems and solutions of the practical application of good faith by analyzing the Korean case (2009Da86000), which undermined the legal stability of good faith in Korea.

• Development and Reproduction
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• v.14 no.2
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• pp.143-154
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• 2010

This article analyzes two leading Korean cases which led to opposite conclusions: the Boramae Hospital Case (Korean Supreme Court 2002 Do 995) and the Shinchon Severance Hospital Case (Korean Supreme Court 2009 Da 17471). In doing so, it pays particular attention to the acceptance, modification, and rejection of paternalism, specifically 'physician paternalism' and 'familial paternalism', both of which have long and strongly influenced the Korean medical environment. In Boramae Hospital, the Court emphasized the obligation of the physician in terms of the life of the patient (eg: protecting and preserving the life and welfare of the patient). Its position seemed to be based on the traditional physician paternalism which presupposes the ability of physicians to identify right and wrong choices according to natural laws. However, the Court saw itself as the final arbiter of who identifies and determines the real world content and consequences of that natural law. In short, the Court elevated itself to the supreme guardian of the patient, and held that its decision cannot be overruled by that of the patient's family. So without specifically referring to the importance of the family and the role of familial decisions, both long-observed traditions in medical decision-making in Korea, the Court shifted away from familial paternalism. In Shinchon Severance Hospital, the Court explained the meaning of the patient's powers of self-rulemore concretely, explaining its scope and substance in greater detail. The Court held that one can exercise the right of self-rule, even over issues such as death, in the form of 'previous medical directions'. However, this case does not represent a wholesale acceptance of medical autonomy (ie: it does not accept self-rule unconditionally). Rather, the Court accepted the importance of the opinions and decision of physicians and of the Hospital Ethics Commission, and the Court still retained to itself the authority to review and make alterations to 'material' decision. The Court did not overlook the importance of the decision of the patient's family, but it also did not relinquish its status as supreme guardian, emphasizing the 'objective' nature of a decision from the court.