民事訴訟

손용근,이호원 한국민사소송법학회 2013 민사소송 Vol.17 No.2

의료과오소송에 있어서 증명의 경감

손용근 한국비교사법학회 1996 비교사법 Vol.3 No.1

損害賠償 訴訟上의 醫療過失 -論點의 分析과 提言에 중점 두어-

손용근 한양법학회 2009 漢陽法學 Vol.25 No.-

This thesis seeks to provide a brief account of several problems associated with medical negligence in medical malpractice actions to recover damages and suggest some new ideas from the critical point of view. The summary of the thesis is as follows. First, more refined definition and analysis is due on medical negligence as one of medical treatmentrelated terms. So far, it is not yet well distinguished in its concept and coverage from treatment negligence and medical malpractice. Second, medical negligence is part of civil negligence approached from the medical perspective. Thus, the legal application of the notion of negligence should be studied with the secret, discretionary, and a prompt judgmental nature of medical acts in mind. Third, medical negligence poses a central issue in the medical malpractice actions to recover damages, regardless of whether claims arise under tort or in contract law. Although civil medical negligence to be established in the medical malpractice actions for damages is a so-called “abstract negligence,” the duty of care owed by average or customary practitioners is that of the highest attention duty of care. Nonetheless, the term “highest attention duty” has been understood as an abstract standard, which is a mere combination of several elements at the most. It is hoped that more studies should be devoted to the refinement of its meaning. Fourth, the precedents of the Supreme Court of Korea attributes the highest attention duty of care to medical practitioners, and negligence is practically presumed in the proof of medical negligence. However, such an approach has been a matter of dispute because it is ambiguous which duty of care is violated, and medical negligence is merely inferred from the totality of circumstantial facts such as a close proximity in time in the occurrence of events or the absence of intervening causes, etc. A refinement and further development is in demand. A continued use of some legal expressions, which have been established by the Supreme Court precedents since the 1990s, constitutes another problematic area. Some scholars, who are probably confused because of ambiguous expressions in the precedents, argued that the presumption of negligence is based on the so-called theory of probability. As an example, one of the hardened expressions “the burden of proof is alleviated … under the presumption of causal relation between medical negligence and damage” should be modified to the more accurate statement that “the burden of proof is alleviated … under the presumption of both medical negligence and the causal relation between medical negligence and damage.” The Court in its precedents has maintained its position requiring that negligence be established in the areas of both common knowledge and specialized medical knowledge. Such problematic position should be settled to the direction in which medical negligence is established by practically presuming negligence in the specialized medical knowledge. The highest attention duty of care is required to a medical practitioner, i.e., an average or customary practitioner. The highest attention duty, although it has only an abstract meaning, remains as a constant in its relation to medical negligence; whereas the level of best medical knowledge and clinical medical practice constitutes variables measured in the framework of relevant time period and local environment. Negligence shall be established by considering the functional relation between the above constant and variables, uninterruptedly examining whether the balance between them has remained intact, and searching for a new factor triggering a shift in the balancing point. As an example of one novel variable, we might want to consider adding a normative standard level to the standard of care, as it had been already adopted in Japan, not limiting relevant factors to merely social and environmental elements in clinical medical practice. It is high time for us...

제2회 法學論文賞 수상인사

孫容根,鄭夏重 한국법학원 1998 한국법학원보 Vol.- No.77

精神障碍者와 司法節次 - 그 - 般論 및 몇가지 現實的인 問題點들 -

孫容根 대한신경정신의학회 1993 신경정신의학 Vol.32 No.1

As mental patients receive special treatments in the medical field, they need to be treated specially in many aspects in the legal field. For a long time, such a special legal treatment has been known as “Forensic Psychiatry” in abvanced countries. Unfortunately Korean doctors and judicial officials are not familiar even with the term Forensic Psychiatry. This deplorable situation has led me to write this article to draw the interest in the Forensic Psychiatry area and to facilitate the cooperation between medical and judicial fields. At first we must recognize the problems of different terminology. Since the law involves quite different terminology from that of the medicine, the comprehension and adoption of such legal terms to the medicine field should be done carefully. I will provide the definition for some terminology in this paper. In Korean judicial procedures, the problems in mental disability law practice are summarized as follow s: 1) Expert Witness Cost The expert witness cost is a kind of a procedural cost to the borne by defendant under the Rule of Korean Criminal Procedure. In practice, however, the government pays for the cost. Thus, it would be better to revise the article of the Criminal Procedure governing the expert witness cost to shift the cost burden from the defendant to the government. If not we must follow the Rule completely. Another problem is, then, how to pay for this cost. The budget for the Korean court system is under the control of the Supreme Court Administration. Thus, short-budgeted lower courts sometimes cannot afford to provide expert opinion opportunities to defendants with an alleged mental disability. To insure the fairness and jusitice, every lower court should be able to budget for the expert witness cost. 2) Forensic Psychiatry Institution The psychiatric examination of a defendant requires a special detention facility. However, there had been virtually no reliable mental hospital for this special purpose. Fortunately this problem can be solved easily after the government established the Forensic Psychiatry Institution. Practicing lawyers in Korea should recognize the need for special detention facility for the psychiatric examination. 3) Expert Opinion Evidence For Korean judges and prosecutors, accepting expert opinions as fact is a rule, rather an exception. That does not mean the courts accept the expert opinions blindfold. The courts use and do need to use demeanor evidence to determine the reliability of the evidence. However, when there is a conflict between an independant psychiatric examination report presented by the defendant and a court-requested psychiatric examination report, deference to expert opinions is needed to prevent subjective determination of the court. 4) Civil Procedure and Psychiatric Examination In Korea, medical examination for a lawsuit rarely includes a psychiatric examination. Even practicing attorneys consider the medical examination is an exclusive term for a physical examination rather than the psychiatric one. The advanced legal culture requires to recognize the importance of the psychiatric examination as one of the medical examinations. 5) Preference for the Mentally Weak Decision Under the Korean Criminal Code, mentally weak defendants can be sentenced to jail, while mentally disabled defendants are considered unable to commit a crime. This has made the courts prefer to find a defendant mentally weak instead of mentally disabled despite a “mentally disabled” finding, when a heinous crime is in trial. This tendency o f the courts should be changed because when a defendant is found mentally disabled, he still has to serve his time in different form for he is confined to a psychiatric detention center under the Social Protection Law of 1980. To remedy all these problems and to ascertain the reasonable treatment for the mentally disabled defendants, the cooperation between the medical a

한국 사법정의와 기독교의 역할

손용근 개혁주의이론실천학회 2020 개혁주의 이론과 실천 Vol.16 No.1

精神障碍者와 司法節次 : An Overview and the Problems in Practice 그 一般論 및 몇가지 現實的인 問題點들

孫容根 大韓神經精神醫學會 1992 신경정신의학 Vol.31 No.6

As mental patients receive special treatments in the medical field, they need to be treated specially in many aspects in the legal field. For a long time, such a special legal treatment has been known as "Forensic Psychiatry" in advanced countries. Unfortunately. Korean doctors and judicial officials are not familiar even with the term Forensic Psychiatry. This deplorable-situation has led me to write this article to draw the interest in the Forensic psychiatry area and to facilitate the cooperation between medical and judicial fields. At first, we must recognize the problems of different terminology. Since the law involves quite different terminology from that of the medicine, the comprehension and adoption of such legal terms to the medicine field should be done carefully. I will provide the definition for some terminology in this paper. In Korean judicial procedures, the problems in mental disability law practice arc summarized as follows : 1) Expert Witness Cost The expert witness cost is a kind of a procedural cost to be borne by defendant under the Rule of Korean Criminal Procedure. In practice, however, the government pays for the cost. Thus, it would be better to revise the article of the Criminal Procedure governing the expert witness cost to shift the cost burden from the defendant to the government. If not, we must follow the rule completely. Another problem is, then, how to pay for this cost. The budget for the Korean court system is under the control of the Supreme Court Administration. Thus, short-budgeted lower courts sometimes cannot afford to provide expert opinion opportunities to defendants with an alleged mental disability. To insure the fairness and justice, every lower court should be able to budget for the expert witness cost. 2) Forensic Psychiatry Institution The psychiatric examination of a defendant requires a special detention facility. However, there had been virtually no reliable mental hospital for this special purpose. Fortunately this problem can be solved easily after the government established the Forensic Psychiatry Institution. Practicing lawyers in Korean should recognize the need for this special detention facility for the psychiatric examination. 3) Expert Opinion Evidence For Korean judges and prosecutors, accepting expert opinions as fact is a rule, rather an exception. That dose not mean the courts accept the expert opinions blindfold. The courts use and do need to use demeanor evidence to determine the reliability of the evidence. However, when there is a conflict between an independant psychiatric examination report presented by the defendant and a court-requested psychiatric examination perpor. deference to expert opinions is needed to prevent the subjective determination of the court. 4) Civil Procedure and Psychiatric Examination In Korea, examination for a lawsuit rarely indludes a psychiatric examination. Even practicina attorneys consider the medical examination is an exclusive term for a physical examination rather than the psychiatric one. The advanced legal culture requires to recognize the importance of the psychiatric examination as one of the medical examinations. 5) Preference for the Mentally Weak Decision Under the Korean Criminal Code. mentally weak defendants can be sentenced to jail. while mentally disabled defendants are considered unable to commit a crime. This has made the courts prefer to find a devendant mentally weak instead of mentally disabled despite a "mentally disabled" finding, when a heinous crime is in trial. This tendency of the courts should he changed because when a defendant is found mentally disabled, he still has to serve his time in different form for he is confined to a psychiatric detention center under the Social Protection Law of 1980. To remedy all these problems and to ascertain the reasonable treatment for the mentally disabled defendants, the cooperation between the medical and judicial fields is essential. I hope this small article would contribute to protect the fights of the mentally disabled defendants who are disadvantaged by the public's ignorance.

醫療過誤訴訟의 立證輕減에 관한 判例의 最近 動向

孫容根 대한민사법학회 1999 민사법연구 Vol.7 No.-

民事訴訟에 있어서 立證妨害에 관한 理論과 判例의 檢討

孫容根(Yong-Keun Sohn) 한국법학원 1996 저스티스 Vol.29 No.3

중재판정(仲裁判定)의 효력에 관한 일반적 고찰

손용근 ( Yong Keun Sohn ) 법조협회 2004 法曹 Vol.53 No.10

우리 仲裁法 제35조에는 仲裁判定이 當事者 間에 있어서 法院의 確定判決과 동일한 효력을 가진다고 규정되어 있다. 확정판결과 동일한 효력을 가지게 되므로 우선 중재판정에는 形式的 確定力과 旣判力이 인정된다. 또한, 확정판결과 동일하게 중재판정에도 形成力, 執行力을 인정하는 것이 일반적이다. 확정판결에서 인정되는 羈束力 또한 중재판정에도 인정되는 것으로 생각된다. 여기에 판결의 기속력과는 약간 다른 拘束力(binding force)이 별도로 중재판정의 효력으로 추가되기도 한다. 중재판정의 여러 효력 가운데 논의가 가장 많은 것은 판결의 경우와 마찬가지로 기판력에 관한 문제이다. 특히 旣判力의 主觀的 範圍와 客觀的 範圍 및 時的 範圍에 관한 문제 등 기판력의 범위와 관련한 문제가 논의의 핵심이다. 그 밖에 旣判力의 本質 등 여러 부분에 검토하여야 할 부분이 많으나, 판결의 경우와는 달리 아직 논의가 시작되지도 못한 부분이 여러 곳에서 발견되고 있다. 그 밖의 효력 가운데 執行力은 중재판정에 대한 執行判決과 관련하여 이해할 필요가 있고, 形成力의 인정 여부는 좀더 연구를 요하는 것으로 생각된다. 拘束力과 羈束力은 결국 같은 의미로 파악하여도 무리가 없다고 본다. 중재판정의 효력과 관련한 문제로서는 仲裁判定의 訂正, 變更, 追加의 문제와 중재판정의 當然無效 문제를 살펴 보았다.