• The Korean Society of Law and Medicine
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• v.9 no.1
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• pp.57-127
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• 2008

In medical malpractice lawsuits, negligence is generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from a foreseeable risks of harm. Thus, the essence of negligence is a breach of obligations to be attentive, and the breach of obligations to be is negligence. However, whether negligence is or not depends on time, place, litigation forms and the judge since the meaning of negligence is wavering on the basis of abstract and normative judgment. In this thesis, what is medical negligence, a breach of obligations of attention for a doctor in medical malpractice lawsuits, would be it further enacted that doctors have the responsibility to protect the patients as a subordinate duty due to a principle of faith and sincerity besides the main duty for medical contract-performance since the suit is a litigation form to be based on responsibilities of experts, especially doctors, though having factors that are non-contractual as a trait for medical treatment. Further on the concept, when the plaintiff asserts and proves a specific fact from the recent moderation of the burden of proof about medical malpractices, whether the court should find a true bill in medical malpractice actually or not has been discussed.

• Journal of Society of Preventive Korean Medicine
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• v.18 no.3
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• pp.105-115
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• 2014

Objective : Traditional medicine (TM) has been playing its role in national healthcare system and it is taken as complementary and alternative medicine (CAM) from the viewpoint of modern Western medicine. In the UK, not a few practitioners of Traditional Chinese Medicine (TCM) are working as CAM practitioners using herbal medicine and acupuncture therapy. Cases of dispute in the TCM practice are not rare these days because patients who take TCM service are increasing by year. Method : In the UK, dispute cases of the Traditional Medicine of East Asia can be found these days, however, it is hard to find a reported court case. A medical dispute case of TCM will be analysed to see the legal management and the resolving principle in the alternative medicine practice with some cases of Korean Medicine (KM) being discussed. Results : The usual pattern of clinical negligence can be discussed from the points of a duty of care, breach of that duty by negligence, and the harm to the patient from that breach of duty. The judge followed this procedure In this case to discuss the claims. The department of health proposed to introduce regulation to provide the reasonable quality in TCM practice, and the governmental system would be essential to regulate both the TCM practice and practitioners. Conclusion : The dispute case of traditional Chinese herbal medicine (TCHM) practice is important for the clinical negligence in TCHM practice. Judging the negligence of a TCHM practitioner involves the conventional negligence principle in tort law, and the TCHM practitioners are required to keep up with the up-to-date information on the related medical specialty. The reasoning is almost the same as that shown in the court case of Korea. The TCHM practice in the UK needs to be under the regulation by the government. The standard of care we expect of a TCHM practitioner is a further matter to discuss from the healthcare and social viewpoints.

• Journal of the Korean Society for Aviation and Aeronautics
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• v.13 no.2
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• pp.48-62
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• 2005

In aviation criminal law is negligence different from in civil law and in general criminal law. The Interpretation of aviation criminal negligence must be elucidated in characteristic own way. The thesis considers the principle of trust, permissible risk and the accomplice offender.

• Journal of Environmental Impact Assessment
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• v.3 no.1
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• pp.31-41
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• 1994

The choice of economic development over environmental protection has been used to explain the decline in the quality of the environment in developing countries. The authors reject this explanation and propose a theory of negligence to explain this decline. They point to the advantages of environmental impact assessments in dealing with the problem of negligence and presents case studies from four countries. Organizational models for Environmental Impact Assessments in Developing Countries are proposed as useful policy measures.

• Health Policy and Management
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• v.2 no.1
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• pp.80-114
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• 1992

Current compensation schemes for medical malpractice based on negligence is absolutely malfunctioning in Korea. Focussing on the reform of present tort systems for resolving medical malpractice disputes, this paper discusses the alternative models of the Social Relief Schemes for Medical Malpractice (SRSMM). Alternative models of SRSMM should fundamentally be based on either negligence or nofalult compensation principle. On the foundation of the previous relief principle, the SRSMM should be equupped with three major components-the preventio/reduction of the sharp increasing medical malpractice, the effective and efficient resolving process for malpractice disputes and the proper social financing scheme for compensation. The paper deals with pros and cons of the possible alternative models for reform centering on the three major components of the scheme. As conclusions, administrative arbitration machinaries and a compulsory fund for compensating the injured under the negligence principle are proposed to resolve the current problems Korea has faced.

• The Korean Society of Law and Medicine
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• v.13 no.1
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• pp.11-40
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• 2012

National Health Insurance Act has been enforced all over the People as part of the effort to assure the minimum constitutional human worth and dignity in the aspect of the right to pursue health for preventing misfortune that comes to death without even a chance to be received treatment for illness or injury. Meanwhile auto insurance is compulsory in certain parts in order to promote benefits of everyday life and the rapid recovery of the damage caused by traffic accident when one have negligently driven a car which has become the necessities in daily life. Any injured driver in a traffic accident can be treated by National Health Insurance without getting an auto insurance in various circumstances, but Article 3 paragraph 2 of Traffic Accident Act don't allow exception of criminal punishment when he has driven a car without license, drunken, or tresspassing the centerline, etc. When the injury occured by his own certain negligence is judged to 'when he has intentionally or through gross negligence caused a criminal conduct or intentionally contributed to the occurrence of an accident' of National Health Insurance Act, insurance benefits can be restricted. Such a restriction could harm the right to pursue happiness and health of People by depriving the poor, who cannot afford to pay, of chances to get treatment. Here we will see benefit restriction by 'gross negligence' of National Health Insurance Act Article 48 paragraph 1, which has largest portion of such restriction. It is desirable to delete 'gross negligence' clause from above paragraph and to interpret 'when' clause restrictively for diminishing confusion of interpreting and guaranteeing the right of health.

• The Korean Society of Law and Medicine
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• v.7 no.2
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• pp.179-218
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• 2006

To succeed the claim of medical negligence, the plaintiff should establish the medical profession's fault, and the causation between the fault and damages. The faults are judged on lege artis, which is based on expert witness. However, judges often infer the faults and causations from circumstantial evidences and patients' injuries. This presumptions depend on the law of nature(Erfahrungsgesetz). The law of nature can explain the typical development of the event. If the circumstantial evidences were in accordance with that, the faults and causations would be able to be recognized by the judges. Therefore the standards of comparison such as lege artis or the law of nature play an important role for medical negligence liabilities to be imputed to doctors or hospitals. The factual elements necessary to assume the fault is similar to those of the causation, for the concept of the fault is correlated with that of the causation. The elements include the temporal and spatial proximity between damages and defendant's medical treatments, no existence of other causations, the probability of bed results developed by the medical treatments, and so on. These enable the fault and causation to be assumed at the same times.

• The Korean Society of Law and Medicine
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• v.9 no.1
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• pp.285-317
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• 2008

To accept the doctor's professional negligence in the medical malpractice, the mistakes, by which the doctor did not foresee the production of the results in spite of the possibility of foresight and did not avoid the production of the results in spite of the possibility of avoidance, must be considered, and to decide the presence of the doctor's professional negligence, the standard must be the attention standard of general-common doctor engaged in the same business and the same function, and the medical enviornments, the conditions, the extraordinary nature of medical behavior, and etc should be considered by the general level of medical science at the time of accident. This principlel must be applied to the medical malpractice case occurred being on duty without exception. But, because of the extraordinary nature of duty work, it is difficult for any doctor to do one's best technical practice by making all diagnosis, medical treatment with all the equipment on the same plane as the ordinary times. That cannot be also expected for any doctor to do one's best technical practice in the terms of a social idea. From this point of view looking into The Precedent case related to Medical-service person being on duty sentenced by The Supreme Court, unlike the general medical malpractice case, the presence of the professional negligence in the medical malpractice occurred being on duty seems to be decided with more consideration on the general level of medical science, the medical enviornments and the conditions, particularities of medical practice at the time of accident. Especially, the extraordinary nature of medical behavior of the medical service person being on duty in the emergency room seems to be admitted compared to that of the medical service person being on duty in ward.

• The Korean Society of Law and Medicine
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• v.11 no.2
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• pp.209-235
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• 2010

According to the development of medical technology, new medical treatments have been dramatically increased as an inevitable consequence, however, it is not easy for medical workers to learn the knowledge that is necessary for new medical treatments and their additions in the medical services. Therefore, it could not be helped increasing the guidelines for applying new medical treatments, and then, the problem would come out whether to attribute the medical negligence to the doctors who did not follow the guidelines when the patient became worse because of his non-compliance. Nevertheless, there is no document to review the problem mentioned above and also no definite precedents. Thus, the civil lawful character and obligation of guidelines on the lawsuit against the medical default have been examined in this studies. The medical negligence is defined as usual doctors violate the care obligation which is demanded for them to follow when they treat patients under the proper medical standard in those days. It is resonable to assume that the matter of guidelines is to decide the level of the care obligation, that means the care which is required of the rational doctors under same circumstances, and in general, the experts' testimonies should be needed in this case. In addition, the issue comes out whether the guidelines can be the standard of the judgement of the medical negligence. Finally, I suppose, the evaluation of the issue depends on who makes the guidelines, what materials are based on, and also depends on whether there is another guidelines in the same disease, what the purpose of guidelines is to save the medical costs or to realize the appropriate medical services, in addition, it depends on how often renew the guidelines, and how wide is the usage of guidelines.

• Journal of the Korean Society of Fisheries and Ocean Technology
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• v.53 no.4
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• pp.430-436
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• 2017

The most frequent occurring and the serious marine casualties in fishing vessels are the collision in statistics from Korea Maritime Safety Tribunal (2008-2015). Collisions are is given a great deal of weight in all marine casualties, and the main cause of collisions is the negligence of watching. From this point of view, this study deals with the collision and its immediate cause, the negligence of watching which are main factors on the indirect causes. Basic analyzing data was gathered from the questionnaire made by experts of sea service part, and analyzed by using the fault tree analysis (FTA). From the result of the study, the occurrent probability of the negligence of watching in the collision due to the indirect causes occupied 64.9%, and its probability caused by the man factors was less than the other factors; i.e. the media factors and the management factors. For the reduction of the negligence of watching in the collision from this study, it needs an effort to remove not only the man factors, but also the media factors and management factors.