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KMID : 1234820170180010003
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Korean Society of Law and Medicine
2017 Volume.18 No. 1 p.3 ~ p.35
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A critical review on informed consent in the revised Medical Law
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Hyun Doo-Youn
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Abstract
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The Supreme Court of Korea first admitted compensation for damages caused by breach of informed consent in 1979. From then on, specific details of informed consent are shaping up and developing through court precedents. The duty of informed consent of doctor is based on article 10 of the Constitution and medical contract, and is expressly prescribed Article 12 of Framework Act on Health and Medical Services and other acts and regulations. By the way, the regulations about duty of informed consent of doctor have been established in Medical Law revised on December 20, 2016, and the revised Medical Law will be implemented on June 21, 2017. According to the revised Medical Law, medical practices subject to description and consent are operation, blood transfusion and general anesthesia that threaten to cause serious harm to human life or to the body. When performing these medical activities, the written consent must be explained and agreed upon in advance. If a doctor violates the law, he will incur fines of less than 3 million won. Comparing and viewing the revised Medical Law and existing legal principles about the duty of informed consent, we can confirm that there is a substantial difference between the two parties. Accordingly, despite the implementation of the revised medical law, the existing legal principles are unlikely to be affected. However, from the perspective of legal uniformity and stability, it is undesirable that legal judgments on the same issues differ from each other. The revised Medical Law about informed consent needs to be reformed according to existing legal principles. And, as in the case of Germany, it is desirable to include the matters concerning informed consent in the civil code.
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KEYWORD
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Informed consent, Explanation, Consent, Self-determination of patients, Medical Law, Compensation for damages, Medical contract, Ghost surgery
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