• The Korean Journal of Air & Space Law and Policy
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• v.5
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• pp.101-118
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• 1993

Generally there is no law and liability system which applies particulary to commercial space ventures. There are several international treaties and national statutes which deal with space ventures, but their impact on the liability of commercial space ventures has not been significant. Every state law in the United States will impose both tort and contract liability on those responsible for injuries or losses caused by defective products or by services performed negligently. As with the providers of other products and services, those who participate in commercial space ventures have exposure to liability in both tort and contract which is limited to the extent of the resulting damage The manufacturer of a small and cheap component which caused a satellite to fail to reach orbit or to operate nominally has the same exposure to liability as the provider of launch vehicle or the manufacturer of satellite into which the component was incorporaded. Considering the enormity of losses which may result from launch failure or satellite failure, those participated in commercial space ventures will do their best to limit their exposure to liability by contract to the extent permitted by law. In most states of the United States, contracts which limit or disclaim the liability are enforceable with respect to claims for losses or damage to property if they are drafted in compliance with the requirements of the applicable law. In California an attempt to disclaim the liability for one's own negligence will be enforceable only if the contract states explicitly that the parties intend to have the disclaimer apply to negligence claims. Most state laws of the United States will refuse to enforce contracts which attempt to disclaim the liability for gross negligence on public policy grounds. However, the public policy which favoured disclaiming the liability as to gross negligence for providers of launch services was pronounced by the United States Congress in the 1988 Amendments to the 1984 Commercial Space Launch Act. To extend the disclaimer of liability to remote purchasers, the contract of resale should state expressly that the disclaimer applies for the benefit of all contractors and subcontractors who participated in producing the product. This situation may occur when the purchaser of a satellite which has failed to reach orbit has not contracted directly with the provider of launch services. Contracts for launch services usually contain cross-waiver of liability clauses by which each participant in the launch agrees to be responsible for it's own loss and to waive any claims which it may have against other participants. The crosswaiver of liability clause may apply to the participants in the launch who are parties to the launch services agreement, but not apply to their subcontractors. The role of insurance in responding to many risks has been critical in assisting commercial space ventures grow. Today traditional property and liability insurance, such as pre-launch, launch and in-orbit insurance and third party liability insurance, have become mandatory parts of most space projects. The manufacture and pre-launch insurance covers direct physical loss or damage to the satellite, its apogee kick moter and including its related launch equipment from commencement of loading operations at the manufacture's plant until lift off. The launch and early orbit insurance covers the satellite for physical loss or damage from attachment of risk through to commissioning and for some period of initial operation between 180 days and 12 months after launch. The in-orbit insurance covers physical loss of or damage to the satellite occuring during or caused by an event during the policy period. The third party liability insurance covers the satellite owner' s liability exposure at the launch site and liability arising out of the launch and operation in orbit. In conclusion, the liability in commercial space ventures extends to any organization which participates in providing products and services used in the venture. Accordingly, it is essential for any organization participating in commercial space ventures to contractually disclaim its liability to the extent permitted by law. To achieve the effective disclaimers, it is necessary to determine the applicable law and to understand the requirements of the law which will govern the terms of the contract. A great deal of funds have been used in R&D for commercial space ventures to increase reliability, safety and success. However, the historical reliability of launches and success for commercial space ventures have proved to be slightly lower than we would have wished for. Space insurance has played an important role in reducing the high risks present in commercial space ventures.

• The Korean Society of Law and Medicine
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• v.12 no.2
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• pp.123-158
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• 2011

The Korea health care system has been divided into Western and Oriental (Korea traditional) medicine since 1951. In accordance with dualistic medical system, there are many conflict cases between medical doctors and oriental medical doctors. Meanwhile, there were much discussions about the meaning and criteria of medical malpractice(negligence). Especially, many cases have been built up about the criteria of medical malpractice through lawsuits. But, comparatively, there's few the medical malpractice case of the oriental medical doctors. According to a recent ruling of the Supreme Court, the legal principles of medical doctor's malpractice case are equally applied to the criteria of the oriental medical doctor's malpractice case. But there are much considerations in addition to these principles for the dualistic medical system and academic distinctiveness. This study is intended to review the dualistic medical system, the criterion of medical malpractice, and analysis this issues. To make long story short, under our dualistic medical system, judging the medical and oriental malpractice should be considered relatively. However, it makes sense that we want medical doctor or oriental medical doctor to demand the reinforced negligence to restrict the unnecessary discretion. If there is lack of evidence-based medicine or the rationality suspected, the health care providers must give enough proof.

• 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.

• Journal of Korean Academy of Nursing Administration
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• v.8 no.2
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• pp.273-281
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• 2002

Purpose. The study was done to develop nursing guidelines to prevent nursing negligence in the clinical setting that would lead to malpractice. Method. A comprehensive review of the literature and focus groups interviews were used to search for malpractice cases related to "observation", one of the most basic nursing activities. The cases were analyzed with respect to nursing practice and a legal expert was consulted on the content. Results. 4 malpractice cases related to observation negligence were selected for this study; 1) a case of failing to observe dyspnea after a thyroidectomy, 2) a case of failing to observe a depressed patient for suicide attempts, 3) a case of failing to observe a VP shunt obstruction, 4) a case of failing to observe a cardiac ischemia after a bronchoscopy. 11 guidelines were developed for clinical nurses and 13 guidelines for nursing managers. Conclusion. These guidelines are useful in preventing malpractice due to nursing negligence. Therefore nurses need to apply them to their practices and continue to make an effort to develop guidelines for other malpractice situations.

• The Korean Society of Law and Medicine
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• v.21 no.1
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• pp.107-152
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• 2020

During the main ruling in 2019, a number of rulings that were of interest or meaningful were handed down, such as just because the complication of medical practice has occurred, there is no presumption of negligence, a case involving a fall accident in which a lot of culpability has recently been made. the death of a well-known singer that caused a sensation, a case about damages caused by MERS in 2015, which is more meaningful in connection with damages caused by COVID-19, an infectious disease that has recently hit the world, including Korea. In preaching the principles of the law, just because there has been a complication caused by medical practice, there is no presumption of negligence, 'The scope of the complication without presumption of negligence' was determined differently by the court, the court was not able to specify the criteria. Specific circumstances were presented to limit the responsibility of the medical institution while acknowledging the malpractice of the medical institution in relation to the fall accident. In relation to the scope of damages, judgment was made on issues related to the calculation of lost profits of medical malpractice; criteria for determining celebrities' daily income, criteria for determining daily income in case of receiving survivor's pension due to medical accident, an incident in which the daily income is denied if the labor capacity is already lost at the time of a medical accident. But, it seems that judgments should be made based on clearer and more reasonable standards. Related to Medical Advertise, specific logic of judgment was presented as to whether it was interpreted as being in accordance with the specific prohibition listed in Article 27 paragraph 3 of the Medical Law, which is the criterion for violation of the Medical Law, or if it constitutes a significant harm to the order of the medical market. In response to the prohibition of operating the multiple medical institutions, the Constitutional Court decided that it was constitutional because it did not violate the regulations on excessive funding, and rationally limited the scope of the prohibited 'redundant operation'. The Supreme Court ruled for the first time that even a medical institution established and operated in violation of the Medical Service Act did not make it impossible to receive all medical care benefits implemented by a medical institution under the National Health Insurance Act. Significant rulings were finalized that recognized the existence of specific protection obligations for the people of the country in the management of infectious diseases.

• Journal of Korean Society of Industrial and Systems Engineering
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• v.40 no.1
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• pp.65-78
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• 2017

Even though cars have a good effect on modern society, traffic accidents do not. There are traffic laws that define the regulations and aim to reduce accidents from happening; nevertheless, it is hard to determine all accident causes such as road and traffic conditions, and human related factors. If a traffic accident occurs, the traffic law classifies it as 'Negligence of Safe Driving' for cases that are not defined by specific regulations. Meanwhile, as Korea is already growing rapidly elderly population with more than 65 years, so are the number of traffic accidents caused by this group. Therefore, we studied predictive and comparative analysis of the number of traffic accidents caused by 'Negligence of Safe Driving' by dividing it into two groups : All-ages and Elderly. In this paper, we used empirical monthly data from 2007 to 2015 collected by TAAS (Traffic Accident Analysis System), identified the most suitable ARIMA forecasting model by using the four steps of the Box-Jenkins method : Identification, Estimation, Diagnostics, Forecasting. The results of this study indicate that ARIMA $(1, 1, 0)(0, 1, 1)_{12}$ is the most suitable forecasting model in the group of All-ages; and ARIMA $(0, 1, 1)(0, 1, 1)_{12}$ is the most suitable in the group of Elderly. Then, with this fitted model, we forecasted the number of traffic accidents for 2 years of both groups. There is no large fluctuation in the group of All-ages, but the group of Elderly shows a gradual increase trend. Finally, we compared two groups in terms of the forecast, suggested a countermeasure plan to reduce traffic accidents for both groups.

• The Korean Society of Law and Medicine
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• v.16 no.2
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• pp.3-26
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• 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 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 Korean Society of Law and Medicine
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• v.19 no.1
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• pp.207-254
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• 2018

The major court rulings delivered in 2017 include the ruling that separated the legal character of denture production agreement signed together with medical care agreement and found a subcontracting dimension in the former, and the ruling that overcame the limitations of the theory of entire appearance of a fetus as discussed in civil law by using the legal principle of insurance which suggests that unborn child insurance takes effect after the contract is signed and the first installment of the premium is paid in. As more court rulings find the medical specialists responsible for accidents and injuries from drugs, some argue that medication counseling by the druggist who makes and dispenses drugs should be upgraded. And with respect to a court ruling that denied the hospital's responsibility for an infection-involving accident even if there were no records on specific measures taken in infection management, some criticized the court for being too conservative in recognizing responsibilities. And with respect to infectious disease management, some criticized the court for its interpretation and application of the facts in the direction of denying the negligence. In addition, some claimed that it is necessary to establish institutional system for hospital infection control and its aid for victims, and to improve the system including the reversal of the burden of proof given the special nature of hospital infections. A number of rulings on the duty to disclose included the one which stated that the specific matter did not require a doctor's explanation as it was explained or the specific medical service would have been performed even if no explanation had been given. There was a greatly controversial ruling over the scope of indemnification, which accepted the occurrence of multiple scars and deformation as disorders while regarding breast as a thoracic organ. And a Supreme Court ruling over interpreting Medical Service Act was criticized as overstepping the boundary allowed in the law.

• The Korean Society of Law and Medicine
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• v.15 no.2
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• pp.31-60
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• 2014

In this paper the good Samaritan civil liability is argued. In many cases some damage could be caused by an emergency medical service. In such situations the degree of duty of care taken by the service provider would be alleviated depending upon the degree of emergency. Then the service provided by anyone not carrying any duty to do so could be generally ruled by the 'Korean Civil Act' Article 735. This article is related to the management of affairs in urgency. The application of this article means the mitigation of civil liability of the service provider. If the service provider not carrying any duty to provide it "has managed the affairs" of the service "in order to protect the" victim "against an imminent danger to the latter's life", the provider "shall not be liable for any damages caused thereby, unless he acted intentionally or with gross negligence". Korea has another rule applied in such a situation, that is the Korean 'Emergency Medical Service Act' Article 5-2. This article is established for the exemption from responsibility for well-intentioned emergency medical service. It could be referred to as the Good Samaritan law. It provides: "In cases where no intention or gross negligence is committed on the property damage and death or injury caused by giving any emergency medical service or first-aid treatment falling under any of the following subparagraphs to an emergency patient whose life is in jeopardy, the relevant actor shall not take the civil liability ${\cdots}$" In this paper the two articles is compared in the viewpoints of the requirements for and effects of the application of them respectively. The 'Korean Civil Act' Article 735 is relatively general rule against the the Korean 'Emergency Medical Service Act' Article 5-2 in the same circumstance. Therefore the former could be resorted to only if any situation could not satisfy the requisites for the application of the latter. In this paper it has suggested that the former article be more specific for the accuracy of making decision to apply it; and that the latter be revise in some requirements including the victim, the service provider, and the service.