• Title, Summary, Keyword: Default on an Obligation

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The Role of Guidelines on the Judgement of Medical Negligence - Referring to Debates in Japan - (의료과실판단에서의 가이드라인의 역할 -일본에서의 논의를 참고하여-)

  • Song, Young-Min
    • The Korean Society of Law and Medicine
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    • v.11 no.2
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    • pp.209-235
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    • 2010
  • According to the development of medical technology, new medical treatments have been dramatically increased as an inevitable consequence, however, it is not easy for medical workers to learn the knowledge that is necessary for new medical treatments and their additions in the medical services. Therefore, it could not be helped increasing the guidelines for applying new medical treatments, and then, the problem would come out whether to attribute the medical negligence to the doctors who did not follow the guidelines when the patient became worse because of his non-compliance. Nevertheless, there is no document to review the problem mentioned above and also no definite precedents. Thus, the civil lawful character and obligation of guidelines on the lawsuit against the medical default have been examined in this studies. The medical negligence is defined as usual doctors violate the care obligation which is demanded for them to follow when they treat patients under the proper medical standard in those days. It is resonable to assume that the matter of guidelines is to decide the level of the care obligation, that means the care which is required of the rational doctors under same circumstances, and in general, the experts' testimonies should be needed in this case. In addition, the issue comes out whether the guidelines can be the standard of the judgement of the medical negligence. Finally, I suppose, the evaluation of the issue depends on who makes the guidelines, what materials are based on, and also depends on whether there is another guidelines in the same disease, what the purpose of guidelines is to save the medical costs or to realize the appropriate medical services, in addition, it depends on how often renew the guidelines, and how wide is the usage of guidelines.

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A Study about Civil Liability of Live Fish Transportation Contract (활어 수송과 계약 체결상의 민사 책임에 관한 연구)

  • Park, Subong;Lim, Seok-Won
    • Journal of Fisheries and Marine Sciences Education
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    • v.26 no.5
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    • pp.959-965
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    • 2014
  • Transporting of live fish requires subcontract with an independent contractor. During the transporting of live fish, civil liability problems can be caused by damage of fish. Before transporting of live fish, responsibility of negligence and tort liability were arisen, after transporting of live fish, default on an obligation was arisen. To avoid this problems, it is important to put a bond on each other and live fish transporting contract can be made a legal contract. Also, transporting of live fish must be made safe, after transporting, and discharge of obligation, perfect transaction is achieved.

Is it a Condition? : The Effect of a Charterers' Failure to pay Hire on time in a Time Charter (정기용선에 있어서 용선료 연체의 효과 - 영국 판례를 중심으로 -)

  • LEE, Chang-Jae
    • The Korean Research Institute of International Commerce and Law
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    • v.70
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    • pp.39-65
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    • 2016
  • On 2013 the English court delivered a decision that the payment obligation under time charter party is a condition. According to this judgement, The Astra, a breach of the obligation to pay hire on time entitles the owner both to withdraw the ship and sue the charterers for damages for the difference between the contract and market rate for the remainder of the contracted period. On 2015, however, the English court stood at the other side. In Spar Shipping, the court confirmed that the obligation to pay hire is not a condition of the contract but an "innominate term" - from the charterers' breach ship owners can exercise their contractual right to withdraw, but owners' right to sue for damages depends on whether the charterers have deprived the owners of the substantial benefit of the contract, or shown an intention to do so. This article aims to compare both decisions over the points that (1) the importance of on-time payment under a time charter party, (2) as a critical and main question in this article, whether the mattered payment clause is a condition or innominate term, (3) whether the on-time payment clause is merely a penalty or a reasonable liquidated damage. Based on various reasons, I am on a position that the payment of hire is not a condition but an innominate term. Default in punctual payment by a charterer, in the absent of clear contractual agreement, needs to be decided further whether that breach removes the substantial benefit of the contract from the owners.

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A study on the Seller's duty to mitigate Buyer's Damages in Int'l Sale of Goods (국제물품매매에서 매도인의 손해경감의무에 관한 고찰)

  • Ha, Kang Hun
    • The Korean Research Institute of International Commerce and Law
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    • v.62
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    • pp.3-32
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    • 2014
  • Article 77 sets forth the principle of prevention applied in several legal systems. Under this principle the party threatened by ooss as a consequence of a breach of contract by the other party is not permitted to await passively incurrence of the loss and then sue for damages. He is obliged to take adequate preventive measures to mitigate his loss. If the injured party abstains from taking such excessive measures he will not be considered to have failed to mitigate the loss under Article 77. The sanction provided in Article 77 against a party who fails to mitigate his loss only enables the other party to claim reduction in the damages. The reduction in damages under Article 77 is equal to the amount by which the loss should have been mitigated if the injured party had taken reasonable measures to avert or to lessen it. The aim of Article 77 is to encourage mitigation of the loss. The duty to mitigate the loss applies not only to a breach of contract in respect of an obligation whose performance is currently due. but also to an anticipatory breach of contract under Article 71. Article 85 contemplates that the buyer is in delay in fulfilling the latter obligation, or else that he fails to pay the price when payment is to be made concurrently with delivery of the goods by the seller. In both these situations of default, the seller who is either in possession of the goods or otherwise able to control their disposition must take measures, reasonable in the circumstances, to preserve them. The right of retention of the goods y the seller exists until he is reimbursed by the other party for the reasonable expenses incurred. Article 87 and Article 88 of the Convention grant different rights to the party obligated to take steps to preserve the goods; Article 87 allows him to deposit them in the warehouse of a third person, and Article 88 to sell them by whatever means appropriate. A difference exists between paragraph Article 88 (1) which grants the right to sell, and paragraph (2) which imposes the duty to take reasonable measures to sell the goods.

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A Study on Causal Relationship About the Reparations Range (손해배상범위에 관한 인과관계의 연구)

  • Choi Hwan-Seok;Park Jong-Ryeol
    • The Journal of the Korea Contents Association
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    • v.6 no.4
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    • pp.146-157
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    • 2006
  • Causal relationship means what relations the result occurred have with a fact as a reason. In general, a formular that no result exists without reasons is used for the method to confirm existence and inexistence of causal relationship. Problematic causal relationships in Private Law are reparations (Article No. 393 of Private Law) due to debt nonfulfillment and reparation due to tort (Application of Article No. 393 by Article No. 750, and No. 763 of Private Law). The purpose pursued by reparation system in private law is to promote equal burden of damages, and the range of reparation at this time is decided by the range of damage and the range of damage is decided by the principle of causal relationship. That the causal relationship theory fairly causes confusion by treating one problem and the other problem as the same thing, instead of dividing them according to the purpose of protection presented by the law is a reason of the criticism from different views.

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