• The Korean Society of Law and Medicine
• /
• v.16 no.2
• /
• pp.3-26
• /
• 2015

Recently, Practicing of ghost surgery and duty of informed consent of doctors have become a big issue in the medical dispute and lawsuits. The ground of admitting the informed consent and the agreement(self-determination of patients) can be based on the dignity of man and the right to pursue his happiness guaranteed under Article 10 of the constitution in theory. However there are no explicit legal regulations on the duty of the informed consent and there is no substantive legal enactment on the informed consent, but there is a collision between self-determination of patients and the discretionary power of doctors. If the discretionary power on the duty of the informed consent was extended it may result in the infringement of the right of surgical patients, so called arbitrary medical treatment. Relating to this issue, New Jersey Supreme Court held that a patient has the right to determine not only whether surgery is to be performed on him, but also who shall perform it. Moreover it held that a surgeon who operates without the patient's consent engages in the unauthorized touching of another and, thus, commits a battery'. But there are no ghost surgery cases adopting battery theory in Korea, and professional negligence has been considered rather than the battery, regarding an absence of hostile intent to injure patient. Supreme Court of Korea held that a doctor who operates a medical procedure without the patient's valid prior consent based on wrong diagnosis commits professional negligence resulting in injury, and the patient's invalid consent do not preclude wrongfulness'. However, if a health care provider conducts a completely non-consensual treatment or substitute surgeon without consent, the action should be plead in battery, not negligence, but if a health care provider violate his duty of care in obtaining the consent of the patient by failing to disclosure all relevant information (risks) that a reasonable person would deem significant in making a decision to have the procedure, the action should be plead in negligence, not battery. Therefore, the scope of patients' self-determination can be protected by stating clearly the scope of the duty of the informed consent and the exemption of the informed consent legislatively, it is considered that it is valid to legislate the limitation of the discretionary power.

• The Journal of the Korea Contents Association
• /
• v.12 no.10
• /
• pp.159-168
• /
• 2012

Freedom of speech is indispensable in Democracy. It is a rink among government agencies. Mass media as institutionalized means which forms public opinion impacts quite a few to a society. Mass media as a life media in our daily lives has characteristics of speed and prompt report. It is difficult to measure the effect on a society. Mass media is a lifeline in democracy because it has freedom of opinion for seeing, listening, speaking, and criticizing about the people's right to know in an information society. Our Constitution also guarantees freedom of the press, information(peoples's right to know), report, the collection of news, and edition. Because an unnecessary thing about a privacy is reported by mass media, it can violate defamation. This study seeks to be unbiased in reporting and what the principles of the Constitution for minimizing an invasion of a person's privacy is. This study also seeks freedom of speech and the right to know. In case that a personal honor is invaded by a mass media and a publication, this study provides the Constitution basis, Criminal Law basis, and Civic Law basis for remedy violation. A report for apology on newspaper and by television was widely used as "a proper punishment for honor recovery in the past". The constitutional court had decided that including the report of apology for "a proper punishment of honor recovery" in the article 764 of the Civic Law as a reason of freedom of conscience and the violation of personal rights was against the Constitution. Therefore, this study examples what is a legal remedy in practical?, where is legal basis of special remedy in the Civic Law, and what is a method by the Press Arbitration Law compared with the examples of other countries. On the other hand, because a mass media may injure a person's honor and infringe a person's privacy, if the report is categorized as a malicious press, the true role which mass media has to do may not demonstrated. In conclusion, this study was to minimalize infringement of mass media to a person and to seek a realistic alternative of a legal remedy.

• The Korean Journal of Air & Space Law and Policy
• /
• v.33 no.1
• /
• pp.175-204
• /
• 2018

Recently, the aviation leisure business has been legislated, and related industries have become active base with increasing the light sports aircraft within the legislation system. However, in the light sports aircraft safety problem, it is often mentioned that the flight is in violation of the regulations, the lack of safety consciousness of the operator and lack of ability, and the personal operators have a risk of accident of light aircraft such as insufficient safety management and poor maintenance. At present, the maintenance of light sports aircraft is carried out by the A & P mechanic in accordance with the relevant laws and regulations, but it is difficult to say that it is equipped with qualification and expertise. It is not a legal issue to undertake light sports aircraft maintenance work on the regulation system. However, the problem of reliability and appropriateness is constantly being raised because airplanes, light sports aircraft, and ultra-light vehicle are classified and serviced in a legal method. Although legal and institutional frameworks for light sports aircraft are separated, much of it is stipulated in the aviation law provisions. Light sports aircraft maintenance work also follows the current aircraft maintenance system. In the United States, Europe, and Australia where General Aviation developed, legal and institutional devices related to maintenance of light aircraft were introduced, and specialized maintenance tasks are covered in the light aircraft mechanics system. As a result of analysis of domestic and foreign laws and regulations, it is necessary to introduce the qualification system for maintenance of light aircraft. In advanced aviation countries such as the United States, Europe, and Australia, a light sports aircraft repairman system is installed to perform safety management. This is to cope with changes in the operating environment of the new light sports aircraft. This study does not suggest the need for a light aircraft repairman system. From the viewpoint of the legal system, the examination of the relevant laws and regulations revealed that the supplementary part of the system is necessary. It is also require that the necessity of introduction is raised in comparison with overseas cases. Based on these results, it is necessary to introduce the system into the light aircraft repairman system, and suggestions for how to improve it are suggested.

• Journal of Arbitration Studies
• /
• v.21 no.3
• /
• pp.115-136
• /
• 2011

In the past, Chinese arbitral system and Chinese arbitral associations were avoided by international society due to the cases which Chinese court rejected the recognition and enforcement of foreign arbitral awards based on rural protection. Especially Chinese court adjudicated to reject the recognition and enforcement of arbitral awards by interpreting public policy broadly. The abuse of public policy by court threats the existence of commercial arbitration system. Under this awareness, the author figured out Chinese court shows what kind of attitude about public policy of Chinese court in the present through analyzing the cases about rejection of enforcement in Chinese arbitral awards in order to analyze whether Chinese court still maintain the negative attitude like past or there exist changes with public policy which is one of the rejection reasons of recognition and enforcement in foreign arbitral awards as the central figure. Chinese court behaved in an uncooperative attitude about arbitral awards like that it reached a verdict to reject the enforcement of arbitral awards by reason of violation in public policy about several foreign arbitral awards at the beginning stage of establishing arbitration law. However, the situation of abuse in public policy was improved a lot by Chinese prime court which enforces pre-inspection system about judgment of rejection of enforcement in arbitral awards. So, there is no case about rejecting the approval and enforcement of arbitral awards by reason of violation in public policy by Chinese court except Yongning Co. case. Moreover, Chinese court got the trust and support from other countries through reinforcement of applied standard. However, Chinese court had been expressed concern from international society because they highly applied public policy and rejected to enforce arbitral awards in the recent case of Yongning Co.. Therefore, this study examined whether it is appropriate to apply public policy of Chinese court in the case of Yongning Co., and then I concluded that. Although Yongning Co. case is the first case which Chinese prime court agrees with public policy by reason of rejection of approval and enforcement in foreign arbitral awards, in my opinion, it doesn't mean that Chinese court has fundamental change in basic attitude and position about the approval and enforcement of foreign arbitral awards. Chinese court keeps the cautious uses of public policy in legal judgment of foreign arbitral awards and it looks like implementing the obligation in regulation of New York Convention sincerely.

• Korean Journal of Social Welfare
• /
• v.60 no.4
• /
• pp.157-173
• /
• 2008

Cultural welfare is the cultural activity provided and supported by state, a local autonomous entity, and private organizations to improve the quality of people's life. And as a basic concept as well as a premise of discussion on cultural welfare, cultural right is a social right, a right which can make cultural express, gain access to cultural activities. A statue concerning cultural activities contributed to the promotion of our people's cultural welfare interwoven with cultural right. But laws were made for the purpose of enforcing national policy and supporting regime rather than promoting fundamental human rights, and they became effective and were understood as a mere part of national government, not as perspective of their execution, security of right or realization of them. On the other hand, based on laws concerning social welfare, cultural life means human life consisting of minimum welfare system, and minimum level of life which guarantees least cultural life is becoming an objective standard. This means the standard level of cultural right, and for the handicapped cultural rights are concretely guaranteed as a right in that they will not be discriminated for their approaching to cultural activities. However, laws concerning cultural activities have limitation in that there are ambiguous concept and limitation of cultural life, and there are no concrete and active laws about cultural rights to guarantee cultural life. In a constitution and laws concerning social welfare, cultural welfare must have concrete contents about the range and the level of cultural rights. In order cultural rights to be turned into complete ones which can assert its rights, as seen in the Supreme Court, a court has to try to understand the violation of cultural rights as the violation of legal rights.

• The Korean Society of Law and Medicine
• /
• v.12 no.1
• /
• pp.177-225
• /
• 2011

Verdicts related to major medical litigation given by the Seoul Central District Court, the Seoul High Court and the Supreme Court in 2010 were analyzed. It's shown that in cases of the medical negligence regarding the occurrence of neonatal cerebral palsy, the plaintiff claims were dismissed using criteria proposed by associations of Obstetrics and Gynecology and Pediatrics in US, and thereof the burden of plaintiffs to prove the medical negligence has increased. In addition, in case of that the expected survival period of infants gets longer, payments for treatment and nursing after survival period determined by judges are made and it was judged to compensate it as a periodical indemnity. In case for the explanation obligation the most frequently mentioned in the medical litigation, in addition to cases of invoking the existing theory of explanation obligation, verdicts to mention the instructions of theory regarding instruction explanation obligation and the possibility of compensation for damages on property are given. Particularly, in cases for a liability of reparation by exaggerating the effects and not disclosing the risks related to treatment with stem cells, even if the treatment not approved by Food and Drug Administration is in violation of the Pharmaceutical Affairs Law, it's not illegal as violation in Pharmaceutical Affairs Law itself. But there is a certain verdict to present the possibility of an extension of the theory of explanation obligation by acknowledging the liability of reparation caused by illegal acts with no explanations of effects and risks of treatment with stem cell by doctors and pharmaceutical companies. In an incident in which a mental patient fell and died through the opened door of the roof at the hospital, a liability of reparation was acknowledged due to defects in structure installation management and this verdict drew an attention since the overall management responsibility about patients including structures was acknowledged to the hospital besides the obligations on medical practice. In case of the verdict without giving the opportunity to state the opinion with respect to the main legal issues, the responsibility of the court was emphasized since the court did not fulfill the explanation obligations. There were some cases in which payments for nursing and caring to a patient in vegetative state during the plastic surgery was admitted. However, in dental-related incidents, the proportion of cases in which plaintiff won was low since the difficulty of proving may be reflected. In the area of administrative litigation, unlike the existing position regarding arbitrary medical charge cover collected from patients in hospital, the verdict to admit the legitimacy of collection of medical treatment was given and attracted the attention of people. Verdict in which the expression related to medical advertisement was not exaggerated disposed the original verdict and pointed out the problem of excessive regulations on medical advertisement. The effort to analyze the trend of verdicts of court through reviewing the decisions and to organize should be continued, but the full decision should be disclosed as a base, and people and systems to enable the all time monitoring should be prepared.

• The Korean Society of Law and Medicine
• /
• v.21 no.3
• /
• pp.117-144
• /
• 2020

In accordance with Article 15 of the Medical Law, medical personnel in Korea cannot refuse treatment of a patient unless there is a justifiable reason, and violation of this obligations is subject to criminal penalties. Japan also stipulates the same content in the law. However, this violation of obligations in Japan is not subject to criminal penalties, and is used as a judgment element of the liability for damages of doctors only in the case of damage to the patient. However, in both countries, it is difficult to interpret and apply the law because the regulation is a little ambiguous. In particular, the key is to find out what is the justifiable reason for the doctor to refuse treatment of the patient. Recently, Japan has completed the work of re-examining the discussion on medical refusal from a modern perspective in terms of improving the excessive working environment of doctors. On the other hand, in Korea, it is not clear in what cases it is possible to refuse treatment. because there is a lack of systematic discussion on medical refusal. Rather, unnecessary misunderstandings and controversies have resulted in the loss of trust between patients and doctors. In Korea, there is already a legal right for a doctor to reject it according to his religious beliefs or conscience in the implementation of the suspension of life-sustaining treatment decisions. And in the case of an abortion, debates are underway that doctors should be given the right to refuse it. This study introduces the current state of discussion in Japan, and examines the issues surrounding medical refusal in Korea. It is hoped that this study will facilitate further discussions on the medical refusal.

• Journal of the Korean Society of Marine Environment & Safety
• /
• v.29 no.5
• /
• pp.470-478
• /
• 2023

All people have human rights that should be protected, and today, the importance of protecting human rights is emphasized in all areas of society. The industry is also carrying out activities to protect the human rights of workers, such as implementing human rights education for human rights management and preparing a response system for human rights violations. However, due to the closed environment and special working conditions, seafarers on board are often placed in a blind spot in human rights protection. In particular, a number of cases of human rights violations concerning beginner seafarers, including cadets, have been identified, and relevant research is insufficient compared to other occupational groups. Jobs that restrict basic human rights cannot be envied by anyone. In this study, implications and problems were derived based on the results of a human rights survey of cadets, and cases of human rights violations, and improvement measures were proposed. The cadets had a very negative perception of human rights violations before boarding. However, it was found that their perception changed after boarding. It was confirmed that cadets have unnecessary fears and concerns before boarding. Improvement measures include the establishment of a legal system for the status of cadets, measures to alleviate non-physical human rights violations, improvement of human rights violations handling procedures and response systems, and enhancing the effectiveness of human rights education.

• Korean small business review
• /
• v.42 no.1
• /
• pp.57-77
• /
• 2020

In Korea, various schemes have been implemented to prevent the outflow of technology, but they do not bring practical effects. In general, we focus on follow-up measures such as strong punishment in case of violation of the law. In terms of proactive prevention, it is not shown to have any real preventive effect, even though it includes such matters as imposing security measures on companies or conducting a survey. this paper examines the need to strengthen the protection of business secrets by reviewing the employment rules between companies and workers presented in the Labor Relations Act and the Labor Standards Act as a realistic alternative. In most companies, even though the employment rule is the highest standard of private regulations, the employment rule has no matters on the prevention and protection of technology leakage. The employment rules require all employees working for companies to agree and notify in the Labor Standards Act, so it is necessary to reflect them as standards in the standard employment rules because it shows that all employees of the company can have a common sense of security and present legal compliance with security-related documents, such as security pledges and security-related guidelines and procedures.

• The Journal of the Korea Contents Association
• /
• v.22 no.8
• /
• pp.392-402
• /
• 2022

The purpose of this study is to examine the protection of third parties of the transactions made by the representative director without resolution adopted by the board of directors. The legal effect of a transaction conducted by a representative director without board resolution in violation of internal restriction or statutory restriction is at issue. The Supreme Court of Korea('SCK') made a new ruling that revised the prior case law(Supreme Court en banc Decision 2015Da45451, Feb. 18, 2021). The SCK in the subject case proclaimed a legal doctrine that 'a third party acting in good faith' shall be protected according to Article 389(3) and 209(2) of the Korean Commercial Act, except that 'a third party with gross negligence' is considered as 'a person acting in bad faith' and thus is excluded from protection. The subject case law can be evaluated as broadening the scope of protection of the third party. In addition, the subject case is meaningful in that it is balance with the related SCK ruling, which considered a third party with gross negligence as a person acting in bad faith while protecting a third party with ordinary negligence in the case of transactions involving apparent representative directors, etc.