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KMID : 0986720150230020113
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Korean Journal of Medicine and Law
2015 Volume.23 No. 2 p.113 ~ p.141
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A Review on the Joint and Several Guaranty Clause in Hospitalization Contract : Focused on Patient’s Rights to Health
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Hong Kwan-pyo
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Abstract
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A hospitalization contract is a medical contract between patient and hospital that is signed when a patient is to check in the hospital for treatments. The hospitalization contract is usually made in a form of hospitalization agreement unilaterally prepared by the hospital in advance. The form consists of a hospitalization contract and a joint and several guaranty contract for the payment of patient’s medical expenses. This article starts with the fact that some hospitals still use a form of hospitalization agreement that is not in conformity with “the standard terms and conditions for hospitalization contracts” revised by the Fair Trade Commission in October 2014, which specify that a joint and several guaranty contract for hospitalization is optional. In fact, a joint and several guaranty clause in such forms can impel patients to accompany with someone who will be a co-signer, in general of hospitalization contracts. Therefore, the hospitalization agreement of such kind itself can be subject to Article 6 Unfair Clauses in Terms and Conditions of “the Act on the Regulations of Terms and Conditions”. Further, if a patient is denied hospitalization contract on the ground of lacking a joint or several guaranty, it would amount to a violation of Article 15 (1) Prohibition of Refusal to Give Medical Examination or Treatment of “the Medical Service Act”. This study looks at the meaning of the rights to health in Article 36 (3) of “the Constitution of the Republic of Korea” and Article 12 of “the International Covenant on Economic, Social and Cultural Right”. Afterwards, it reviews the State’s responsibility in securing the patient’s rights to health, which can be restricted by the demand for joint and several guaranty in making a hospitalization contract. This article thereby seeks for possible measures for improvement.
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KEYWORD
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Hospitalization Contract, Joint and Several Guaranty, Obligation to Diagnose and Treat, Standard Terms and Conditions, Rights to Health, Human Rights
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