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KMID : 0986720120200010121
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Korean Journal of Medicine and Law
2012 Volume.20 No. 1 p.121 ~ p.143
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A study on medical civil liability and negative prescription
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Baek Kyoung-Hee
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Abstract
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The structure of civil liability in medical malpractice basically is declared the responsibility for insolvency and illegal act, and extinctive prescription of it can also be governed by a discussion of the Civil Law Article 162 and 766.
In practice, usually lawsuits in medical malpractice tends to resolve through legal principles in responsibility for insolvency and illegal act. Thus, a three-year statute of short-term and 10-year statute of long-term extinctive prescription laid down in Civil Law Article 766 are primarily a problem. Civil liability in medical malpractice can have the ambiguous boundary about interpretation of those two legal prescriptions in Civil Law Article 766, because the medical practice has the expertise and chamber characteristics and the disease incubation period. To solve these problems, amendments of extinctive prescription itself like the foreign legislations will be the ultimate solution for the maintenance of the system. Within the current law system being not revised, physician claims the completion of the extinctive prescription about civil liability in medical malpractice. If it conform to violation principles of good faith or prohibition of rights abuse, however, an active interpretation is requested to exclude them.
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KEYWORD
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medical accidents, medical malpractice, limitations periods, tod, principle of good faith, abuse of rights
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