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KMID : 0986720110190010111
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Korean Journal of Medicine and Law
2011 Volume.19 No. 1 p.111 ~ p.131
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The necessity and Schemes of the Exceptional Clause on Crime of the Medical Dispute
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Lee Baek-Hyu
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Abstract
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On March 11, 2011, the National Assembly in Korea finally passed the Bill on Malpractice-related Damage Relief and Medical Dispute Mediation. This act aims to relieve the Malpractice-related Damage with fast and equitable way and foster stable treatment circumstances to the healthcare provider(s) by acting as alternative dispute resolution(ADR) procedures. Meanwhile, it has been relatively understood that "a special exception treatment on Crime" is only for the benefit of the healthcare providers. But, this scheme, in my view, would be significantly beneficial for patients" interests. That"s why it can be helpful to relieve speedy and equitably the Malpractice-related Damage. Therefore we need to review positively the Exceptional Clause, to extend the range. More specifically, it is necessary that we should expand the exceptional range in phases, by the consideration of objects and conditions for application, out of regard for the damage relief and certainty. These measures would be in accordance with the intent of "Restorative Justice", which has been lately emphasized in the Criminal Justice System. (1) Most of all, on the conditions for application, it is considered whether it is made ADR(mediation, arbitration, compromise), or gets comprehensive?liability insurance?deduction . (2) In the second place, on the effect for application, it can be applied the crime as an offense subject to complaint"s intention, or the indictment ban. It is reasonable that the exceptional range is expanded by these objects and conditions for application, in the order of ① a professional negligence-a slight injury, ② a professional negligence-a serious injury, ③ a gross negligence-a slight injury, ④ a gross negligence-a serious injury, ⑤ a professional negligence-a death, ⑥ a gross negligence-a death(under Article 268 of the Criminal Code).
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KEYWORD
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Medical Dispute, Medical Malpractice, Mediation, Restorative Justice, the Exceptional Clause
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