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In the medical malpractice cases, a patient injured by medical malpractice has to prove a wide variety of damages. The most common examples are loss of enjoyment of life, physical and mental pain and suffering, and loss of future earning capacity. And due to complicated medical evidence and juries’ tendency to support doctors and hospitals, medical malpractice lawsuits are difficult to win. Most law experts would agree that the current medical malpractice system in Korea does not work effectively either to adequately and fairly compensate the victims or prevent injuries caused by medical errors. After many discussions, the National Assembly finally passed the Bill on Malpractice related Damage Relief and Medical Dispute Resolution on March 11, 2011. And the Korea Medical Dispute Mediation and Arbitration Agency (KMDMAA) was established on April 8, 2012. This act aims to secure just, speedy and inexpensive resolution of medical disputes, focusing on alternative dispute resolution (ADR) procedures. Especially, in this act exceptional clause on criminal punishment has been introduced in order to encourage the active participation of doctors in the procedures of a medical dispute mediation and arbitrations. Nevertheless, this aim might be hard to achieve. On the contrary, this punishment-exception has been criticized that it brings about only negative changes in criminal liability. The purpose of this article is to explore the change of the criminal liability by the introduction of no punishment against victim’s will in Act on Medical Dispute Mediation. This thesis consists of four main parts: Ⅰ. Introduction, Ⅱ. An overview of exceptional clause on criminal punishment in Act on Medical Dispute Mediation, Ⅲ. Effectiveness of exceptional clause on criminal punishment and change in criminal liability, Ⅳ. Conclusion.

For the purpose of vitalizing the medical dispute mediation and arbitration by Korea Medical Dispute Mediation and Arbitration Agency, it is important to expand human resources & physical facilities in addition to ensuring fairness of case processing and organizing the legal system. Since fairness of case processing is directly related to people's trust, it is necessary to appropriately adjust the percentages between patients and health & medical service personnel by constituents of the Agency in charge of related work. Based on this, it would be necessary to change the mind-set of blindly expecting advantageous outcome by patients regarding the court ruling as the Agency processes cases commissioned from court as much as possible. In addition, allowing Minister of Health and Welfare to directly become involved in every area of the Agency's affairs including its work, accounting & assets and human resources can invade the independence and autonomy of the Agency. There is also a possibility that the Agency will perform its work in a heteronomous manner by climbing on the bandwagon resulting from the government's policy change. It will then lead to a situation where the Agency will be limited in gaining people's trust as an objective and fair agency. Accordingly, it would be necessary to prepare articles of association of the Agency to ensure its operation and work to be performed continuously without wavering. In addition, Minister of Health and Welfare as competent authorities should just remain the role of supervising whether the Agency is being operated according to its articles of association. Lastly, it is necessary to organize the legal system to induce the participation in mediation and arbitration by health & medical service personnel. This will require efforts such as improving the system related to the procedure after requesting mediation and arbitration, as well as organizing the system of valuation authorities and improving the exceptional clause on criminal punishment. It would be also necessary to expand the Agency's facilities and human resources to allow people to easily and quickly use the Agency by establishing the Agency branches in major regions of the country.

As the duty of a doctor that provides all the information including possible negative effects of a treatment has been considered more in the legal evaluation, there is only little domestic precedent figured out the violation of those duties. However, as the medical malpractice litigations are getting increased recently, it seems clear that we need more reasonable and objective opinions collected from experts. This is a very important issue which can be used to clarify both the patients' right of self- determination and the doctors' violation of liability for explanation in the healing process.

The issue of patient self-determination continues to exist in the beginning, progress and completion of medical care and in certain stages after the completion as well. Nevertheless, the discussion about liability for explanation in Korea has a problem with interpreting the scopes of application of patient self-determination in an excessively narrow way because it generally limits the problems to the cases in which medical invasion matters. For example, the issue of whether a patient should follow doctor's instruction or not when it requires the patient to do a certain act such as taking a medicine can be considered another aspect of patient self-determination. Factors affecting medical practice are various, including patient's general idea about medical treatment, his or her view of religion and life, and quality of life before or after the treatment. In such reality of medical service as what is called 'three-minute treatment', however, it is not easy for a doctor to get a grip on various factors, which tends to cause problems with doctor's violation of liability for explanation and infringement of patient self-determination. To address the issue, doctors have to understand factors affecting patient self-determination on medical treatment, and to grasp fully the factors, they are obliged to confirm patient's individual opinions in detail. In addition, patient's right to self-determination is a prerequisite of patient's decision on his or her body, which is on the based of the idea of human dignity stated in Article 10 of our Constitution. Therefore, patient self-determination is always in existence and even though it can be exceptionally restricted in temporary and special circumstances, the exercise of the right to self-determination continues in effect when reasons for the restrictions cease to exist due to flexibility in the self-determination. Liability for explanation, a precondition to the exercise of the right to self-determination, also needs to be interpreted in the same way.