Recent Trends of Law&Regulation in Korea
Total Page：16
File Type：pdf, Size：1020Kb
Recent Trends of Law & Regulation in Korea Vol.25 Winter 2017 ISSN 2288-4041 Expert Column - Current Trends in Korea’s Medical Disputes and Dispute Settlement System Introduction to the Korean Legal System - Introduction to the Foreign Legal Consultant System in Korea Interview - UNISDR Office for Northeast Asia and Global Education and Training Institute Recent Trends of Vol.25 Winter 2017 Law & Regulation in Korea Expert Column 04 Current Trends in Korea’s Medical Disputes and Dispute Settlement System Introduction to the Korean Legal System 10 Introduction to the Foreign Legal Consultant System in Korea Law and Regulation 14 Enactments and Amendments of Law 24 Court Decisions Interview 34 UNISDR Office for Northeast Asia and Global Education and Training Institute Cover Story The cover photo of the 25th Recent Trends Recent Events of Law & Regulation in Korea depicts Seongsan Ilchulbong, also called ‘Sunrise 38 2016 OECD-Asian Round Table on Corporate Governance Takes Place in Seoul Peak’. Seated in Seoguipo City of Jeju 39 The 9th Korea Human Rights for Crime Victims Conference held in Busan Island, Korea, the tuff cone has a bowl-like crater, which is about 600 meters in diameter and 182 meters high. The sunrise Policies of the Ministry of Justice at Seongsan Ilchulbong Peak is considered 40 MOJ, KNPA Join Hands to Efficiently Respond to Foreigner Crimes to be the best among the 10 most beautiful sceneries in Jeju. Because of its scientific values and extraordinary scenery, Ministry of Justice at a Glance it was designated as a UNESCO World 42 Caring, Law Compliance Campaign Natural Heritage site on July 2, 2007. Law in Your Daily Life 46 How to Ride a Bicycle in Korea Living in Korea 48 Winter in Korea List of Useful Organizations 50 Government Departments 53 Readers Survey Publisher Feature contributors Lee Changjae / Acting Minister of Justice Expert Column - Dr. Hyun-ho Shin Editor Dr. Hyun-ho Shin is the representative lawyer with Shin & Partners, with primary Kim, Hochul / practices in medical malpractice. He is currently a member of the Standing Deputy Minister for Legal Affairs Committee on Human Rights Affairs at the Korea Bar Association. Dr. Shin was an advisor to the Korean Association of Medical Law, and an adjunct professor at Director Korea University School of Law. He received a presidential citation in recognition KOO Sang-Yeop / [email protected] of his services in communicable disease control. Dr. Shin holds a PhD in Law from Vice Director Korea University. Jeongsoo Soh / [email protected] Translator Choi, Bori / [email protected] Rim, Na-hyun / [email protected] Introduction to the Korean Legal System - Young Lo Ko Special Thanks to Young Lo Ko is a legal specialist at the International Legal Affairs Division within Yeon Ju Oh the Legal Affairs Office of the Ministry of Justice. Previously, he served as a third Seung Min Jeon secretary at the Ministry of Foreign Affairs and worked with POSCO. He was a Ji Young Jang full-time PhD researcher at the University of Edinburgh, and holds LLM from the Won Young Park London School of Economics and Politcal Science. Chungyoung Son Jiwon Kim Hyun Wook Park Ik Seon Jung Woo Taek Shin Jeongwan Kim Interview - Sanjaya Bhatia Sanjaya Bhatia is the Head of the Office of UNISDR Office for Northeast Asia Edited in International Legal Affairs Division (ONEA) and Global Education and Training Institute (GETI) for disaster risk Designed by AandF communication reduction in Incheon, Republic of Korea. He has worked with the Government of Published by Ministry of Justice India, the World Bank, and the United Nations in the field of disaster risk reduction and climate change adaptation for over 24 years. He holds a degree in law and a Master’s Degree in public administration from New York University. He has authored a number of publications. Ministry of Justice, Government Complex Gwacheon, 47 Gwanmoonro, Gwacheon-si, Gyeonggi-do, 427-720, Republic of Korea TEL: 82-2-2110-3661, FAX: 82-2-2110-0327/ [email protected], www.moj.go.kr Emblem The Republic of Korea government has changed its was inspired by the font used in the “Hunminjeongeum” official “government identity.” The new logo conveys (1446), the original Hangeul text, in consideration of the the dynamism and enthusiasm of the country with the harmony embodied in the taegeuk circle. Starting three colors of blue, red and white. It echoes off Korea’s March 2016, the new logo is used at all 22 ministries national flag Taegeukgi with the taegeuk circular swirl including the Ministry of Justice and 51 central and the blank canvas embodies in white. The typeface government agencies. Winter 2017 Vol.25 03 Recent Trends of Law & Regulation in Korea | Expert Column Current Trends in Korea’s Medical Disputes and Dispute Settlement System 1. Introduction Dr. Hyun-ho Shin The number of medical lawsuits began to increase in Korea in 1989 only after the country had successfully hosted the Seoul 1988 Summer Olympics. A mere 60 cases of medical malpractice Disclaimer: The views and opinions expressed were published on the Publication of Cases between 1910 when the modern judicial system was in the article are those of the author and do adopted in the country and 1990. As the public witnessed a rise in their conscience of not necessarily reflect the official policy or righteousness and national income, an expansion in health insurance coverage, an extension in position of the Ministry of Justice of the average life expectancy and development in medical technology in the 1990s, they were more the Republic of Korea. prone to receive medical treatment and examination leading to the rising medical disputes. Up until the 1980s, medical disputes were usually settled through social-deviant behaviors, including assaults, threats, demonstrations, and sit-ins rather than through litigation. This is attributed to the widespread frustration that suing a doctor is like beating your head against a brick wall along with a victim mentality that lawsuits consume a lot of time and money. With a growing distrust between patients and medical practitioners, the patients are left with health and financial burden caused by the defensive medicine and unnecessary health care of medical practitioners. Korea is one of the most vulnerable countries to medical disputes as the number of medical treatments in Korea reaches around 1.4 billion annually, 30 cases per person. The Korea Medical Dispute Mediation and Arbitration Agency (K-Medi), the Korea Consumer Agency (KCA) and the Korea Commercial Arbitration Board (KCAB) handle alternative dispute resolution (ADR) for medical disputes. To actively resolve medical disputes, the Supreme Court established a civil division for medical cases in the lower instance and the Korean Bar Association (KBA) adopted the medical law research institute system in 2010. Recent Trends of Law & Regulation in Korea 04 2. Current trends in medical lawsuits Like general lawsuits, the burden of proof in medical lawsuits lies with the patient. A patient shall prove all the requirements of compensation A. Current trends in civil lawsuits for damages, including the existence of medical treatment, occurrence of damages, causal relationship between medical treatment and 1) Rising caseload damages and illegality and liability of medical treatment. Even though the K-Medi, KCA and KCAB carry out ADR for medical disputes, the number of medical lawsuits surged from 89 cases in 1989 The Supreme Court infers the causal relationship between medical by 10 percent per year to 1,101 cases in 2013. treatment and poor outcome and damages to alleviate the burden of proof of the patient to protect his or her right. This is because a patient The rate of appeals in medical lawsuits is relatively higher than other finds proving the causal relationship and malpractice in a medical cases as the trials are closed without sufficient deliberation during the lawsuit difficult due to reasons such as expertise of medical knowledge, first instance and appellate trial. The appellate rate in medical cases secrecy of medical treatment, preponderance of medical information, reaches 70 percent while that of the total civil suits just hovers around and exclusiveness of physicians. In terms of proving the causal 40 percent. Even though a second instance is a fact-finding proceeding, relationship in a medical lawsuit, the Supreme Court states, “strict it takes an ex post facto approach and tends to close the deliberation natural scientific proof that will not leave any suspicion is not necessary unilaterally without accepting new evidence. In this regard, the rate of to prove the causal relationship in a medical lawsuit. Rather, it will be final appeals is increasing in a steady fashion following the complaints sufficient enough if the high degree of probability that a certain fact led that appropriate deliberation has not been made in the trial on appeal. to a certain consequence can be recognized considering the empirical The growing rate of appeals proves that a medical ruling fails to evidence.” In this respect, the burden of proof of a patient can be persuade neither the patient nor the physician. Therefore, a fundamental reduced to impose fair share of burden to the physician. For the level of improvement is required for the discovery system and shift of burden of proof, the Supreme Court can infer the causal relationship only by the proof. probability between malpractice and poor outcome holding, “it will suffice to prove that the malpractice, which is based on the common 2) Reduction in burden of proof for causal relationship and malpractice sense of the ordinary people, occurred during a series of medical Winter 2017 Vol.25 05 practices and that no other cause can be established between the series malpractice at the same time to prevent medical practitioners from of medical practices and the outcome.” holding too expansive liability for damages.