지도설명의무-판례 경향을 중심으로

이정선 대한의료법학회 2013 의료법학 Vol.14 No.2

In order to achieve the purpose of treatment for patients by a doctor, the instruction explanation obligation, which means that he should give patients the description in more details to prepare for postoperative sequelae or complications, is common with the advice explanation obligation as a doctor should explain some information to patients. Since the advice explanation obligation is the benefit and protection of the law for self determination right, but the instruction explanation obligation is one for the integrity of body and life, one can be distinct from the other. Judgments giving the instruction on the concept of instruction explanation obligation, specific methods of implementation and a range of compensation for damage are recently being made by courts at all levels including the Supreme Court. It is the time to systematize them. The contents which have been mainly discussed so far include the essence of above mentioned instruction explanation obligation. However, when the tendency of practice is considered, the efforts are required to admit the organic relevance between instruction explanation obligation and advice explanation obligation and to explain the relationship without any contradiction. For whereabouts of liability of proof, patients theoretically demonstrate the failure to implement it. However, when the theoretical consistency is maintained, it is likely to fail the intent to recognize the instruction explanation obligation and it may ask patients to prove something impossible to be proven. Thus, these things should be considered. Moreover, as the instruction explanation obligation is associated with medicine instruction obligation of a pharmacist and the coverage is being extended, it is the time to require the systematic study on the theoretical limit.

키코판결과 설명의무

윤태영 한국민사법학회 2014 民事法學 Vol.66 No.-

The duty of explanation between contracting parties has been accepted in the academic circles in order to guarantee actual liberty of contract, although the Korean Civil Code does not have statutes that govern it. Nevertheless, there is few work providing an implication for defining the extent to which a duty of explanation can be applied. This shows how it is hard to find characteristics and circumstances of each individual contract cases that affect a scope of the explanation duty. As decided by the Korean Supreme Courts in November 2013, The KIKO(Knock-in Knock-out) case can be exemplified to shed light on definition of the explanation duty. KIKO’s contracts are the currency options designed to help companies hedge exchange rate risk associated with the appreciation of the Korean Won beginning in the middle of the 2000's. However, when the Korean Won depreciated precipitously against the dollar during the global financial crisis in 2008, companies that have signed the KIKO’s contracts filed lawsuits against the banks, claiming that the KIKO’s contracts are invalidated. In these cases, the duty of explanation was a big issue which involves difficult problems. For example, the issue about why business operators rather than consumers should be subject to explanation, and to what range should the bank explain about financial instrument. This study attempts to set a specific standard of explanation duty with recent four KIKO’s cases of the Korean Supreme Court. The Supreme Court recognized that the banks have high explanation obligation about KIKO because of complicated OTC derivative. According to the Supreme Court's decision, there is a finding that the plaintiff companies negotiated proper contract prices, had experience in forward exchange and foreign exchange risk insurance, and were actively involved in the negotiation of the execution time and contract terms with the banks; in this sense, thus, the banks did not violate the suitability rule or its explanation obligation. However, the question arises as to why the Supreme Court did not judge whether the banks explain the imbalanced risk of foreign exchange reserves and put-option or not. A financial instrument seller should not only provide information for the buyer, but also explain important factors on the risk in buyer’s view; and a key of explanation obligation in KIKO cases is the imbalanced risk of foreign exchange reserves between put-option.

2010년 주요 의료 판결 분석

이정선,서영현,유현정 대한의료법학회 2011 의료법학 Vol.12 No.1

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.

보험약관 설명의 대상에 대한 실증적 접근 및 법적 제안

김은경(Kim Eun Kyung) 한국보험법학회 2016 보험법연구 Vol.10 No.1

보험계약은 약관을 기반으로 한 소비자계약이다. 보험약관은 보험자에게는 상품의 구성내용으로서 시장에서 보험자의 수준을 판단받는 법적 상품이다. 보험자는 보험계약을 체결할 때에 보험계약자에게 보험약관을 교부하고 그 약관의 중요한 내용을 알려주어야 할 의무를 가진다. 이를 보험자의 보험약관의 설명의무라 하고 상법 제638조의3 제1항에 명문으로 규정하고 있는 법정의무에 해당한다. 이 의무를 보험자에게 부과하는 것은 개개의 보험 상품마다 그 특징이 다르고 계약의 내용에 대하여 구체적으로 인지할 필요가 있으므로 보험계약자가 보험 계약을 체결함에 있어 보험 약관을 제공하는 보험자로부터 최소한의 필요정보를 얻게 하여 계약적 균형관계를 유지하는 것에 그 근본적인 취지가 있다고 한다. 그러나 보험자의 설명의무의 범위에 대한 대법원의 판단은 보험약관의 생성과정에서 기원하는 정보비대칭상태에 대한 관계를 이해하지 아니하고 계약적 약자에 대한 배려없이 이루어진 것은 아닌지에 대한 의심이 든다. 대법원이 지금까지 견지해 오던 약관에 정하여진 사항이라고 하더라도 거래상 일반적이고 공통된 것이어서 보험계약자가 이미 잘 알고 있는 내용이거나 별도의 설명 없이도 충분히 예상할 수 있었던 사항이거나 이미 법령에 의하여 정하여진 것을 되풀이하거나 부연하는 정도에 불과한 사항이라면, 그러한 사항에 대하여까지 보험자에게 명시·설명의무가 인정되는 것은 아니라고 하지만 실제로 보험계약자는 이러한 약관의 내용을 보험자의 설명이 없이는 제대로 인식하고 있지 아니하였다. 약관의 내용 중 보험자를 면책하게 하거나 또는 새롭게 책임을 부과하는 사유에 해당하는 것 그리고 보험계약자에게 의무를 부과하는 사유이거나 보험계약자를 불리하게 하는 내용의 약관에 대하여는 이는 현재까지의 대법원의 판단기준과는 달리 보험자가 설명을 해야할 것으로 함이 타당할 것이라고 본다. Most of the insurance contract is a consumer contract based on the terms and conditions. Insurance Terms and Conditions and content of the goods, the insurer receives determines his level in the market through this. The insurer issued to the policyholder when the terms and conditions to enter into insurance contracts and has an obligation to tell your important content of the terms and conditions. It is called "Duty to Deliver and Specify Standard Insurance Terms", and that the legal obligations stipulated Article 638-3 (1) in the Commercial Act. The reason for imposing the obligation to the insurer is because it is necessary to recognize in detail the different features that each individual insurance products, with respect to the contents of the contract. This is the fundamental purpose to the minimum necessary to obtain information from the insurer's terms and conditions to provide insurance as the policyholder has signed a contract to maintain the equilibrium relationship. However, the judgment of the Supreme Court of Korea on the scope of the insurer's explanation obligation nor to understand their relationship to the state of origin information asymmetries in the process of creating an insurance terms and conditions is considered to be made without consideration for the contractual weakness. In fact, policyholders are not aware of the contents of the terms and conditions are not properly insured without explanation. As a result, indemnify the insurer of the content of the terms and conditions, or a new one that corresponds to the reason for the imposition of liability, and the reasons for imposing the obligations to policyholders or policyholders of the current Korea Supreme Court with respect to the terms of the contents of a disadvantage for Unlike the determination criterion, it is also reasonable that an insurer has to do an explanation.

신의칙상의 부수적 주의의무에 관한 연구

정영진 ( Young Jin Jung ) 제주대학교 법과정책연구원 2012 국제법무 Vol.4 No.2

The definition of subordinate negligence clause originates from the principle of faith and loyalty which is the premise of the civil law and takes on the role of actualizing the principle of faith and loyalty. In any general legal relationships, when the contents of the rights become confirmed, the contents of the responsibilities that need to be executed get decided but in the case of subordinate responsibilities, the results of the damage compensation is determined first then a decision is made as to see if any subordinate details have been violated to form the exact details of the damage compensation regarding them. The subordinate negligence clause takes on various functions such as actualizing the contracts that have been derived from the main responsibilities of the creditor and the debtor. When there is negligence in executing the responsibilities, the smooth achievement of the main responsibilities in payment also becomes difficult. The subordinate negligence clause which is one of the principles that have been borne out of the principle of faith and loyalty leads to another purpose of payment between involved parties who have a relationship of rights and obligation. Here, payment refers to the act of the debtor for the purpose of credit. By execution of such payment, rights are satisfied. Therefore, a contract relationship gets carried out along with the obligation of payment but this alone does not resolve the contract relationship. If the payment obligation can be said to be an expression of obligation according to stipulation and law of the parties involved, the underlying internal obligation which fulfills and supplements is the subordinate negligence clause. The more the contract relationships become complicated and multifaceted these days, the more important the subordinate negligence clause becomes. However, the subordinate negligence clause does not have any stipulation or legal power, making it ambiguous in clarity of obligation and the standards of its scope. Therefore, this paper has the purpose of finding justifiable cause of subordinate negligence based on the general principle of faith and loyalty of civil law. By making the obligatory structure of the debtor as the basic premise and after over viewing its special characteristics and functions, various theories and case studies are looked into in terms of its contents regarding subordinate negligence clause along with acknowledged evidence under law of the subordinate negligence clause. The ultimate purpose of the research lies in clarifying the definition and structure of the subordinate negligence clause through the relationship between contract forming and fault liability.

검사의 客觀義務와 檢察改革의 바람직한 방향

노명선(Ro, MyungSun) 성균관대학교 법학연구소 2014 성균관법학 Vol.26 No.4

검사가 행사하는 검찰권은 행정권에 속하면서도 그 내용에 있어서 사법권과 밀접한 관계를 가지고 있다. 이러한 의미에서 검사는 행정기관이면서도 사법기관이라는 이중적인 지위를 가지고 있다. 검사의 이러한 특수한 성격에서 검사에게는 법관과 같은 자격과 신분보장이 요구되고 있다. 이를 검사의 준사법관적 성격이라고 한다. 따라서 검사는 법관과 같은 진실추구와 정의에 따라야 할 의무가 부과되어 있다. 이러한 준사법관적 지위만을 강조한다면 검찰권한을 키우는 정당화 논리에 빠질 수 있다. 그래서 우리 법은 검사에게 권한을 행사함에 있어서 공익적 견지에서 공정한 태도로 행사하도록 제한하고 있다. 그런 의미에서 독일과 같이 검사에게 객관의무도 인정되는가? 이러한 객관의무는, 실체적 진실주의=직권주의 계보에 속하는 독일에서의 관념론적인 논의에서 출발하고 있지만 당사자주의를 강조하는 한국에서도 타당한 결론을 도출할 수 있다. 특히 우리법은, 구체적으로 영장신청권을 헌법 상 검사에게만 인정하는 것도 검사의 객관의무를 전제로 이해할 수 있다. 나아가 사법경찰관에 대한 지휘와 통제를 강화하고, 공소제기와 공판과정에서는 피의자/피고인의 이익을 위해 공소권 남용을 억제하고, 증거제출과 개시범위를 확대하며 피해자의 이익을 위해 공소권을 상대화 하고, 설명의무를 강조하고 있다. 결국 검사의 소송법상 지위는 형사소송에서 적정절차의 옹호자, 피의자/피고인/피해자 등 절차 관여자 모두를 위한 인권보장적 지위로서 검사의 당사자성은 수정되어야 한다. 이를 위해 검사의 객관의무는, 1)검경 수사권과 관련하여, 검찰, 경찰 간 역할의 합리적 배분과, 검사의 경찰에 대한 실질적 지휘를 담보하는 제도적 보장에 관한논의, 2)용어사용에 혼돈을 가져오고 있는 당사자주의에 대한 올바른 이해와 이를 수정하는 제도적 보장 즉, 피의자/피고인이 부당하게 응소를 강요당하지 않도록 검사의 소추억제이론으로서의 공소권 남용론에 대한 논의, 3) 피의자/피고인의 방어권을 확충하기 위한 검사의 증거제출의무, 증거개시의무 확대에 관한 논의, 4)시민의 공소권 이념을 매개로 한 시민에 의한 민주적 통제로서 일본의 검찰심사회나 미국의 대배심 제도의 도입여부에 관한 논의 등 검찰개혁 과제를 풀어나가는 이론적 배경으로서 역할이 기대되고 있다. Prosecutional power is in inclusion of administrative authority; however, in terms of the content, it has a great deal of relation with judicial power. Therefore, public prosecutor’s holds twofold positions of administrative and judicial agencies, which reflects a quasi-judicial characteristic of prosecutor. Consequently, public prosecutor’s has obligations to pursue truth in the perspective of a judge and fulfill the justice at the same time. If the quasi-judicial position exclusively emphasized, justification to encourage prosecution authority possibly arises. With the intention of preventing from the occurrence, law restricts the degree of authority for prosecutor to maintain an objective attitude. The following paragraph would discuss whether objective obligations are applied to prosecutor, as in Germany. Although these objective obligations are originated from an ideological discussion in Germany that continues the tradition of'verism=offizialprinzip,' Korea, with an emphasis on 'adversary system,' is able to draw a rational conclusion. Law in Korea, especially, has a detailed understanding on an exclusive acknowledgement of 'warrant application form' to prosecutor according to the constitutional view on the foundation of objective obligations. It additionally reinforces command and control on the judicial police, restrains the abuses of arraignment(prosecutorial) right in order to protect advantages of the suspect and the accused during the trial, relatives prosecutorial right for the benefits of the victim with the expansion of evidence submissions and the degree of disclosure, and underlines duty of explanation. In consequence, correction of prosecutor is required since a status of public prosecutor’s in respect of legal procedure law should be regarded safeguard for human rights for the defender, suspect/the accused/victim and any other concerned in the process. To achieve the purpose above, objective obligations of prosecutor should include 1) A rational allocation of roles of police and the prosecution concerning criminal investigations, 2)A correct understanding on 'quasijudicial position' where confusion exists in use of term and institutional establishment to reflect the correction; in other words, a discussion on abuses of prosecutorial right unjustly as in 'deterrence theory' 3) a discussion on obligations of submissions of evidence to expand the suspect/accused's right to defense and disclosure of evidence, 4)a discussion on whether to adopt grand jury of the United States or prosecutorial review commission of Japan.

암보험 약관상 ‘원발부위기준 조항’에 관한 연구 - 울산지방법원 2021.2.4. 선고 2019가단118653 판결을 중심으로 -

전한덕,배현경 법무부 2021 선진상사법률연구 Vol.- No.95

Recently, even though the insured has been diagnosed with cancer, the insurance company has refused to pay the insurance through internal medical consultation or did not pay the cancer insurance because of the exemption clause that does not explain important matters. The subject judgment covers the terms and conditions stipulated that if the first cancer is transferred to another cancer, the insurance company should pay the insurance premium based on the first cancer. The subject judgment interpreted the provisions of the primary part of the cancer insurance terms and conditions in favor of the policyholder by applying the interpretation against the draftsman(Contra proferentem), and to view the contents of the terms and conditions as important matters that the insurance company should explain to the policyholder, and to recognize the violation of the insurance company's obligation to explain the products. I agree with the conclusion of the subject judgment. However, in the case of the subject judgment, it is judged to be a more accurate interpretation method to apply the principle of objective interpretation rather than the principle of the interpretation against the draftsman. Also, it is not acceptable that the court actually estimated the violation of the obligation to explain of the insurance company without sufficient hearing, even though the policyholder signed the product description confirmation after receiving the insurance terms at the time of the contract, and the insurance planner's recruitment statement also stated the contents of the product explanation obligation. This judgment made by the court, which should proceed with the trial based on the evidence, focusing on the heart, is considered to have violated the fairness of the trial. 최근 들어 피보험자가 암으로 진단받았음에도 불구하고 보험회사가 내부 의료자문을 통해 보험금 지급을 거절하거나 중요한 사항에 대해 설명하지 않은 약관상 면책조항을 이유로 암보험금을 지급하지 않는 등 암보험을 가입한 보험소비자의 피해가 증가하고 있다. 대상판결은 최초의 암이 다른 암으로 전이될 경우 암보험 약관에서 보험회사가 최초 발생한 암을 기준으로 보험금을 제한하여 지급하도록 규정한 약관조항을 다루고 있다. 대상판결은 작성자불이익 원칙을 적용하여 암보험 약관의 원발부위기준 조항을 보험계약자에게 유리하게 해석하였고, 해당 약관의 내용을 보험회사가 보험계약자에게 설명하여야 하는 중요한 사항으로 보고, 보험회사의 상품설명의무 위반을 인정하였다. 대상판결의 결론에는 찬성한다. 그러나 대상판결의 사안에 있어서는 보충적으로 적용하여야 하는 작성자불이익의 원칙보다는 객관적 해석의 원칙을 적용하는 것이 더 정확한 해석 방법으로 판단된다. 또한 보험계약자가 계약체결시점에 보험약관을 교부받은 후 상품설명확인서에 서명하였고, 보험설계사의 모집경위서 상에도 상품설명의무 이행에 대한 내용이 기재되어 있음에도 불구하고, 법원이 이에 대해서 충분한 심리를 하지 않은 채 보험회사의 설명의무 위반을 사실상 추정한 것은 수긍할 수 없다. 이는 증거를 중심으로 재판을 진행하여야 하는 재판부가 심증에 치중하여 판결을 내린 것으로 재판의 공정성을 침해한 것으로 본다.

수술동의서의 형사법적 제 문제

이승준 ( Seung Jun Lee ) 연세대학교 법학연구원 2009 法學硏究 Vol.19 No.1

Nowadays there have been an increesing number of circumstances where obtaining an informed consent is mandatory. And doctor`s operation is a treatment which needs professional knowledge and high judgement. In this situation, we have to hold dear patient`s self determination to secure his body and life. The informed consent based on obligation-explanation gives precise information of his operation and acts as a effective admissibility evidence. Considering patient`s self determination, in case the informed consent is made out, doctor`s operation is based on agreement which will remove facts moderateness. For this, operations have to satisfy subjective and objective conditions of medical service and not in such case agreement is invalid. On the other hand, in case the informed consent is not made out, doctor`s operation is a charge of injurying another. But illegality can be justificated if patient`s consent is expected. In case the informed consent is not made out, generally substantial fulfillment of obligation- explanation can`t be expected. In this case, doctor`s treatment is likely to be a arbitrary medical service. Nowadays the informed consent used by hospitals is utilized as a measure to limit the claim for damage in the civil suit and as a influential evidence of carelessness in the criminal suit. But the informed consent is very unfavorable to the patients and varied according to hospitals. Therefore, for the patients` right and doctor`s maintenance of stability, it is necessary to prepare and use standard informed consent which is based on patient`s self determination.

2013년 주요 의료 판결 분석

이동필,정혜승,이정선,유현정 대한의료법학회 2014 의료법학 Vol.15 No.1

The court handed down meaningful rulings related to medical sectors in 2013. This paper presents the ruling that the care workers could be the performance assistants of the care-giving service although the duties of care worker are not included in the liability stipulated in the medical contract signed with the hospital for reason of clear distinction of duties between care workers and nurses within the hospital in connection with the contract which was entered into between the hospital and patients. In relation to negligence and causal relationship, the court recognized medical negligence associated with the failure to detect the brain tumor due to the negligent interpretation of MRI findings while rejecting the causal relationship with consequential cerebral hemorrhage. The court also recognized negligence based on the observation on the grounds of inadequate medical records in a case involving the hypoxic brain damage caused during the cosmetic surgery. In terms of the scope of compensation for damages, this paper presents the ruling that the compensation should be estimated based on causal relationship only in case the breach of the 'obligation of explanation' is recognized, however rejecting the reparation for de factor property damages in the form of compensation, and the ruling that the lawsuit could be instituted in case that the damages exceeded the agreed scope despite the agreement that the hospital would not be held responsible for any aftereffects of surgery from the standpoint of lawsuit, along with the ruling that recognized the daily net income by reflecting the unique circumstances faced by individual students of Korean National Police University and artists of Western painting. Many rulings were handed down with respect to medical certificate, prescription, etc., in 2013. This paper introduced the ruling which mentioned the scope of medical certificate, the ruling that related to whether the diagnosis over the phone at the issuance of prescription could constitute the direct diagnosis of patient, along with the ruling that required the medical certificate to be generated in the name of doctor who diagnosed the patients, and the ruling which proclaimed that it would constitute the breach of Medical Act if the prescription was issued to the patients who were not diagnosed. Moreover, this paper also introduced the ruling that related to whether the National Health Insurance Service could make claim to the hospitals for the reimbursement of the health insurance money paid to pharmacies based on the prescription in the event that the hospitals provided prescription of drugs to outpatients in violation of the laws and regulations.

의료과오소송에서 의사의 설명의무

이정환(Lee, Jeong-Hawn) 원광대학교 법학연구소 2014 의생명과학과 법 Vol.12 No.-

In rapidly modern society, awareness about medical practice expands unimaginably. Medical malpractice that has intrinsic, customary trait incre ases annually and a damage suit about malpractice also does. The doctor and patient should listen carefully each other in medical m alpractice. They should exchange opinions while patient has to demand e nough pre-explanation itself. In malpractice suit, explanation duty of doctor is that normally the pat ient can have to exert self-determination based on personal rights and in cluding explanation about symptom, content of therapy method, content of therapy method and danger when the doctor implements medical practic e accompanying physical invasion. Such awareness is that patient is not just object treated but, subjective existence. Therefore importance of expl anation about patient grows as meaning of self-determination of each individual. In connection with such explanation duty of doctor, the doctor does not give the patient enough explanation about possibility of bad result. If the doctor give the patient such like explanation, it is preliminary consideration of malpractice suit that the patient did not receive treatment. explanation duty of doctor is for patient’s choice as the patient compares fully necessity or danger with medical practice. the reason why we adopt non-violation theory of explanation to malpractice suit was started from proving obligation to relax theory. Explanation duty of doctor can be discussed according to malpractice’simportance, receiver’s ability about explanation duty, degree of invasion, time to performance of a duty, arraign of implied·presumptive, being able to acknowledge unpredictable danger in view of contemporary medical state, whether such explanation duty affect the doctor advantageously or adversely. But this manuscript just looks through grounds, legal temper and legal content of explanation duty, proving obligation and violation effect about explanation duty violation because of limitation of paper.