인터넷 서비스 제공자의 불법행위책임 - 미국 판례를 중심으로 -

문성제 한국비교사법학회 2001 比較私法 Vol.8 No.2

스웨덴 원격의료 도입의 현황과 시사점

문성제 대한의사협회 의료정책연구소 2020 의료정책포럼 Vol.18 No.3

의사의 진찰시간과 진료환자 수가 직무소진에 미치는 영향

문성제,박정훈,이정찬 한국병원경영학회 2022 병원경영학회지 Vol.27 No.4

Purpose: Physician's occupational burnout has been a very important issue that can cause negative consequences not only for individualʼs physical and mental health, but also for patientʼs health and the overall national healthcare system. For the reason, this study confirmed how consultation length and the number of outpatients affect physicianʼs occupational burnout in the medical environment. Methodology: In the study, the data of ʻ2020 Korean Physician Surveyʼ conducted by Korean Medical Association(KMA) was used for the analysis, and a total of 4,215 physicians were selected as study samples. The differences in the degree of occupational burnout according to the physiciansʼ general characteristics were confirmed through uni-variate analysis, and also a regression analysis was conducted to confirm the effects of consultation length and the number of outpatients on physicianʼs occupational burnout. Findings: As a result. the overall degree of physicianʼs occupational burnout decreased(β=-0.051, p<0.01) as the consultation length increased. Specifically, the physician's emotional exhaustion increased(β=0.051, p<0.01), while the reduction of accomplishment decreased(β=-0.131, p<0.001). Furthermore, the overall occupational burnout decreased(β=-0.047, p<0.01) as a proportion of advice and education during the consultation increased, and it had an effect on the decrease in depersonalization(β=-0.045, p<0.01) and the reduction of accomplishment(β=-0.065, p<0.001). At last, as the number of outpatients increased, the overall occupational burnout increased(β=0.041, p<0.05) with more emotional exhaustion(β=0.095, p<0.001), depersonalization(β =0.065, p<0.001), and less reduction of personal achievement(β=-0.081, p<0.001). Practical implication: Consequently, it is necessary to prevent physicianʼs occupational burnout by ensuring sufficient consultation length and providing a medical environment to treat an appropriate number of patients. Therefore, national policies should expand health insurance coverage and compensate medical fees for sufficient consultation length that both patients and physicians can satisfy. It will ultimately contribute to ensuring the patientsʼ health and improving the quality of national healthcare services.

장애아의 출생과 醫師의 민사책임에 관한 비교법적 검토

문성제 법조협회 2006 法曹 Vol.55 No.12

태아의 장애사실을 미리 알았더라면 임신중절을 하였을 장애아를 의사의 진료상의 과실로 이를 알지 못하여 임산부의 자기결정권이 침해된 경우 이에 대한 손해배상을 청구할 수 있는가. 더 나아가 이 같은 이유로 출생한 장애아를 부양함에 있어 그의 부모는 그에 상당하는 교육비용과 기타 의료비 등을 부담하게 되는데, 이 같은 원인을 제공한 의사에게 손해 비용을 청구할 수 있는가. 이와 같은 논의가 미국, 영국을 비롯하여 우리나라에서도 이미 이루어져 왔는데 대부분의 국가에서는 이를 부정하는 입장이다. 우리나라에서 부정하는 이유로 드는 것은, 태아의 기형여부 검사에 있어서 의료상의 과실로 장애나 기형사실을 미리 알아내지 못하였다 하더라도 신생아에게 나타난 증세가 다운 증후군일 경우 모자보건법에서 규정하고 있는 인공임신중절 사유에 해당하지 않아 부모가 적법하게 낙태할 수 없다는 이유로 의사의 손해배상을 인정할 수 없다는 것이 우리 법원의 입장이다. 그러나 이 같은 소송이 다시 제기될 경우 같은 입장을 계속 유지할 수 있을 지는 의문이다. 왜냐하면 2000년 11월 17일 프랑스 파기원 판결에서는 이 같은 주장에 반하는 판결이 있어 주목되기 때문이다. 따라서 이 글은 우리나라에서 장애아의 출산과 관련하여 나타나는 제 문제를 제 외국의 판결 기타 프랑스 파기원의 판결 등과 비교하면서 향후 제기될 수 있는 문제에 대한 새로운 방향모색을 위하여 연구되었다. * 논문접수 : 2006. 7. 31. * 심사개시 : 2006. 8. 3. * 게재확정 : 2006. 10. 13.

성년후견인의 의료행위에 대한 동의권과 법률상의 제 문제

문성제 한국의료법학회 2009 한국의료법학회지 Vol.17 No.2

유동 집합동산의 양도와 공시에 대한 새로운 접근

문성제 성균관대학교 법학연구원 2009 성균관법학 Vol.21 No.3

Up to now, the objects of mortgage are corporeal articles which may be registered and enrolled and have been focused primarily on real estate, because real estate has been considered more valuable and less fluctuating in its price than movable property and has been considered more advantageous in transactional safety and certainty owing to public notification than the latter. Therefore, the movable property that may not be registered and enrolled has been not so much available as an object of mortgage, no matter how much valuable it might be. However, the Korean financial crisis around 1997 has caused higher uncertainty about collateral value of domestic real estate and thereby has been also a new turning point of domestic real estate market to get more interested in collective movable property mortgage that sets a multitude of collective movables en bloc as the purpose of mortgage. In Korea, such a high interest in said mortgage has been reflected on court's judgments for the effectiveness of contract to establish fluctuating collective movable property mortgage for transfer, and the judgments preinform follow-up legislative discussions about said contract in near future, as some advanced countries like United States and Japan have already enacted and enforced special laws to permit transfer of movable property. However, the biggest one of issues raised so far in the collective movable property mortgage is the difficulties with finding presence of any collateral right in legal relationships with the third party, because current means of publicly notifying the availability of collateral right relies on constitutional possession according to agreement between parties concerned. Particularly, current collective movable property mortgage may bring a variety of legal issues, because it is free to carry in and out to certain extent. In other words, current collective movable property mortgage may involve certain legal issues like double mortgage or effective scope of current collective movable property mortgage in terms of liquidation or insolvency practices. Notably, in case of the mortgage for current collective movable property, a collateral right holder may grant a mortgagor the right to dispose of a subject matter to certain extent applicable and may supplement the subject matter, so that the mortgagor may keep performing his operating activities and thereby acquire business funding, despite any established mortgage for transfer, ultimately in order to achieve any desired goal of collateral system. But there is not yet any relevant system developed in Korea. That is why it will be required to complement current domestic mortgage system in near future. The United States has already prepared a framework of movable property mortgage for transfer by adopting a new concept of collateral right in Chapter 9 of the Uniform Consumer Code(U.C.C). Japan has also established ‘the Act on the Exception to Assignment of Movables and Claims’ in 2004 and thereby has extended existing registration system even into real rights over movables in order to explore a new orientation turning from conventional unstable public notification system for movables by constitutional possession. In view of the above matters, this study sought to examine legal principles of collective movable property mortgage system in preparation for introducing a public notification system for transfer of movable property into Korea, and also sought to introduce foreign application cases of said system and emphasize why it is necessary to introduce said system.

[미국] “미국, 예상 밖의 의료비 청구가 사라진다” 외

문성제,지성인 대한의사협회 의료정책연구소 2021 의료정책포럼 Vol.19 No.2

하자담보책임법 개정을 위한 논의와 방향성을 위한 소고 - 독일 개정민법의 내용을 중심으로 -

문성제 한국재산법학회 2010 재산법연구 Vol.27 No.2

Current regulations on liability for warranty against defects (hereinafter called “warranty liability”) under Article 580 of Korean Civil Law contain very abstract and ambiguous provisions, which were contrary to those regulations enforced in major countries of Continental law system that is well characterized by further and unambiguous provisions about requirements or matter of facts for justification of liability. Furthermore, most countries of Continental law system has established legal provisions on permission of justifiable claims for contractual termination and reduction in price as a part of effectiveness of warranty liability under their current civil law, so that those provisions can be effective in the actual imposition of liability for damages on certain sellers to the extent that their acts satisfy special requirements like malicious intent. Contrary to these countries,however, Korean Civil Law has no express provision on permission of claims for reduction in price due to defects of any goods, but provides that buyers may terminate their contract with sellers only when the former hardly expect any successful achievement of contractual goals, and also provides that the former may claim damages to the latter in other cases. Moreover, current Korean Civil Law stipulates that sellers shall bear any strict liability for damages due to defects of subject matter in trade, but it still exposes a question of ambiguity about which requirements and damages shall be applicable to such strict liability. Recent international discussions about warranty liability deals with liability for warranty against defects of subject matter in trade as a part of liability for any default of obligation within a framework of integrated liability laws, and also treats the defects as a category of integrated requirements under said laws. The Article 437 of Revised German Civil Law has unified provisions on liability for any damage against defects of goods and rights vested therein. Furthermore,said Article 437 stipulates that sellers have their mandatory responsibility for offering and selling indefective goods to buyers in the aspect of subject matter and rights, and also incorporates any liability for damages against defects into the Contractual Obligation Breach Act (Leistungsstörungsrecht) in force. But Korean civil law establishes provisions on warranty liability, apart from liability for non-fulfillment of obligations, without any stipulation on possible concepts of defect. That is why it has many challenges in its construction and execution. Starting from these points, this study reflects on Korean circumstances of energetic discussions on revision of current Civil Law regarding warranty liability,with a view to examine such legal composition and major considerations of the Warranty Liability Act under German Civil Law as shown in the course of modernization of obligation laws, so that it focuses investigation specially on the Warranty Liability Act among other considerations required for discussions on revision of Korean Civil Law. The content and legal composition of Warranty Liability Act under the German Civil Law becomes one of major matters required for reference in the aspect of comparative law, even if Korean legislative authorities enact legislations on warranty liability and other non-performance cases under Civil Law in near future. From the above perspectives, this study addresses composition and major considerations of provisions on liability for damages against defects under revised German Civil Law, focusing on investigating major contents and favorable orientations of the Revised Korean Civil Law.

의약품사용(醫藥品使用)과 의료과오(醫療過誤)의 제(諸) 문제(問題)

문성제,Mun, Seong-Je 대한의료법학회 2002 의료법학 Vol.3 No.2

의약품 제조자책임 이론의 전개-미국의 판례 분석을 중심으로-

문성제 한국의료법학회 2005 한국의료법학회지 Vol.13 No.1