의료관광에 따른 의료분쟁에 있어서 국제재판관할
International Juridical Jurisdiction on medical dispute out of medical travel and tourism
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A medical tourism is one of the most high value industry in Korea. Korean government and local government try to pursuit promoting business of medical tourism in oder to get the new benefit model from medical tourism. In the process of medical tourism business, the medical disputes have increased continuously. If an international dispute occurs in medical tourism, it naturally involves a question about the country of which court may have jurisdiction over the medical dispute. Therefore we need to consider the international jurisdiction issues as a possible method of dispute resolution which is satisfactory both patient and medical institution. In medical dispute out of medical tourism, a claim for damages is theorized by two point of legal view. One is responsibility by breach of contract, the other is responsibility by an unlawful act or tort. Under the general theory about international jurisdiction, the court which is in the place of performance of a duty in the contract has the jurisdiction in case of breach of contract. Also, the court of locus delicti where unlawful act or misfeasance is committed has the jurisdiction in case of tort. In both case, our country in which medical service is made has the international jurisdiction. But in each case, there are some exceptions about general international jurisdiction theory. In the breach of contract, consumer contract is consist of the exception. By the article 27th of our private international law, medical consumer bring a suit in the country in which he has his habitual residence. In unlawful act theory, the place in which the result occurs and also the place in which unlawful act is conduct are the place of locus delicti which has the same jurisdiction. Therefore, probably foreign country has the international jurisdiction in case of medical dispute out of medical tourism. So we need to consider the legal issue about recognition of foreign judgment and this paper deal with the requirements for recognition of foreign judgement . Especially, this paper deal with the problem whether we recognize the effect of the foreign judgment which has the institution of damages that are different from ours when the verdict of foreign judgment include punitive damages. Because, the recognition of foreign judgement cannot be made if the punitive damages is against to good public order and customs.
Abstract
A medical tourism is one of the most high value industry in Korea. Korean government and local government try to pursuit promoting business of medical tourism in oder to get the new benefit model from medical tourism. In the process of medical tourism business, the medical disputes have increased continuously. If an international dispute occurs in medical tourism, it naturally involves a question about the country of which court may have jurisdiction over the medical dispute. Therefore we need to consider the international jurisdiction issues as a possible method of dispute resolution which is satisfactory both patient and medical institution. In medical dispute out of medical tourism, a claim for damages is theorized by two point of legal view. One is responsibility by breach of contract, the other is responsibility by an unlawful act or tort. Under the general theory about international jurisdiction, the court which is in the place of performance of a duty in the contract has the jurisdiction in case of breach of contract. Also, the court of locus delicti where unlawful act or misfeasance is committed has the jurisdiction in case of tort. In both case, our country in which medical service is made has the international jurisdiction. But in each case, there are some exceptions about general international jurisdiction theory. In the breach of contract, consumer contract is consist of the exception. By the article 27th of our private international law, medical consumer bring a suit in the country in which he has his habitual residence. In unlawful act theory, the place in which the result occurs and also the place in which unlawful act is conduct are the place of locus delicti which has the same jurisdiction. Therefore, probably foreign country has the international jurisdiction in case of medical dispute out of medical tourism. So we need to consider the legal issue about recognition of foreign judgment and this paper deal with the requirements for recognition of foreign judgement . Especially, this paper deal with the problem whether we recognize the effect of the foreign judgment which has the institution of damages that are different from ours when the verdict of foreign judgment include punitive damages. Because, the recognition of foreign judgement cannot be made if the punitive damages is against to good public order and customs.
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