• The Korean Society of Law and Medicine
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• v.16 no.2
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• pp.159-193
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• 2015

Owing to causes such as population aging, increased use of various medical devices, long-term hospitalization of various patients with reduced immune function such as cancer, diabetes, and organ transplant patients, and the growing size of hospitals, hospital infections are continuing to increase. As seen in the MERS crisis of 2015, hospital infections have become a social and national problem. In order to prevent damage due to such hospital infections, it is necessary to first strictly implement measures to prevent hospital infections, while, on the other hand, providing proper relief of damage suffered due to hospital infections. However, the mainstream attitude of judicial precedents relating to hospital infection cases has been judged to in fact shift responsibility over damages due to hospital infections on the patient. In light of the philosophy of the damage compensation system, whose guiding principle if the fair and proper apportionment of damages, there is a need to seek means of drastically relaxing the burden of proof on the patient's side relative to conventional legal principles for relaxing the burden of proof, or the theory of de facto estimation. In relation to such need, the German civil code (Burgerliches Gesetzbuch), which defines contracts of medical treatment as typical contracts under the civil code, and has presumption of negligence provisions stipulating that, in cases such as hospital infections which were completely under the control of the medical care providers, if risks in general medical treatment have been realized which cause violations of the life, body, or health of patients, error on the part of the person providing medical care is presumed, was examined. Contracts of medical treatment are entered into very frequently and broadly in the everyday lives of the general public, with various disputes owing thereto arising. Therefore, it is necessary to, by defining contracts of medical treatment as typical contracts under the civil code, regulate the content of said contracts, as well as the proof of burden when disputes arise. If stipulations in the civil code are premature as of yet, an option may be to regulate through a special act, as is the case with France. In the case of hospital infection cases, it is thought that 'legal presumption of negligence' relating to 'negligence in the occurrence of hospital infections,' which will create a state close to equality of arms, will aid the resolution of the realistic issue of the de facto impossibility of remedying damages occurring due to negligence in the process of occurrence of hospital infections. Also, even if negligence is presumed by law, as the patient side is burdened with proving the causal relationships, such drastic confusion as would occur if the medical care provider side is found fully liable if a hospital infection occurs may be avoided. It is thought that, alongside such efforts, social insurance policy must be improved so as to cover the expenses of medical institutions having strictly implemented efforts to prevent hospital infections in the event that they have suffered damages due to a hospital infection accident, and that close future research and examination into this matter will be required.

• (The)Study of the Eastern Classic
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• no.32
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• pp.71-101
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• 2008

This study is intended to review the war and the living of the common people of Choseon dynasty, through the true stories of captives kidnapped in the region of the Qing(胡地) during the Pyeongja horan in the 17th century. The common people, Kim seung kyung and Ahn chu won, who had been kidnapped in their young age, managed to escape from the region of the Qing to Choseon after having experienced a painful living as a captive for 27 years. Kim seung kyung and Ahn chu won had to make a choice to run away from the Qing in order to bring their war distorted life back to its original state. Kim seung kyung who had successfully escaped, could live without severe difficulties by the aid of his family living at his hometown, but Ahn chu won who had not found his own family or relatives, couldn't have got any helping hand from the people mentally or financially. So, he tried to escape again to Beijing, but discovered and captured so that a diplomatic problem was caused between the Choseon and the Qing Dynasty. Through the true story of Kim seung kyung and Ahn chu won, we can see the lives of Choseon common people who were trying to overcome the difficulties with their own iron will without being undaunted by hardships. Even though the captives had terrible experiences hating to remember, their experiences gave a chance to the Choseon people opening their eyes to the foreign cultures and the new world. At that time, the Choseon government was too weak to estimate how many captives were or what the captive's real fact was. Meanwhile the Choseon government managed to do the least duty in order to protect its people, by breaking the provisions of repatriation that the fled captives should be returned back to the Qing Dynasty. Through reviewing the captive's true story of the Choseon common people, we can ruminate the Choseon society in the 17th century which failed to establish an independent national history, and the issue of the Korean War captives in the modern history forgotten under the shade of the dustbin of history.