Efforts to mediate medical disputes have continued for the last 23 years since 1998 through the establishment of related laws. As a result, the Relief of Medical Accident Damages and Mediation of Medical Dispute Act (hereinafter referred to as the Medical Dispute Mediation Act) was enacted on March 11th, 2011 and took effect from April 8th, 2012. In addition, pursuant to the same Act, the Korea Medical Dispute Mediation and Arbitration Agency (hereinafter referred to as K-Medi) was launched in April 2012 as an independent arbitration organ for medical conflicts. After the launch of K-Medi, the number of applications filed for arbitrations and the number of those reaching a settlement shows an upward trend indeed. And it is expected that the number of arbitration and mediation applications will continue to increase down the road. At this point in time there is a need to examine the utility of the operation of K-Medi and medical dispute arbitration system, and to come up with ways to improve the operation of the same by reviewing controversial criminal law issues under the Medical Dispute Mediation Act and other major sticky issues, analyzing medical accidents and actual cases of resolving medical accidents through K-Medi and medical dispute mediation system, and comparing such cases with previous ones.

Based on the aforementioned need for research, this report deals with the following issues:
First, it reviews the relationship between criminal and civil liability regarding medical accidents and disputes. In most cases, medical accidents and disputes are the areas where civil and criminal liability issues intertwine with each other. One can look no further than important clauses of the newly enacted Medical Dispute Mediation Act such as no-fault liability, exceptional clause on criminal punishment, proxy payment request for damages, reversal of the burden of proof, etc to confirm this. For this reason, the relationship between the two liability areas is reviewed, and the intrinsic functions of criminal liability area are discussed. In conclusion, criminal penalties imposed upon health professionals are for preventive functions through observance of norms.

Second, this report analyzes recent trends in criminal punishment and medical dispute arbitration in connection with medical malpractice. Tendency of late in criminal punishments and medical conflict arbitration with respect to medical accidents is briefly reviewed through statistics set forth. The number of litigations and applications for dispute arbitration is on an upward trend every year. Of legal proceedings, a criminal suit in particular is steadily increasing lately. Further, contrary to the prediction that the number of arbitration application filed with the Korea Consumer Agency would decrease due to the establishment of K-Medi, such number actually gets larger year by year.

Third, this report compares and analyzes various arbitration regimes employed by countries like the U.K, Germany, Japan, etc to resolve medical disputes. What those 3 countries that put in place medical dispute arbitration system ahead of Korea have in common is the fact that parties to a medical conflict participate in an arbitration process as they wish, the decision of an arbitration does not have binding force, and the parties may file a law suit. In addition, an arbitration process makes progress through free and voluntary talks between the parties.

Fourth, this report reviews the role of arbitration system and criminal law in medical malpractice and medical disputes. For this purpose, this report explores the possibility of viewing the current medical dispute arbitration system from the restorative justice perspective. At the same time, it examines the role of criminal law in medical disputes which is changing in relation to that of criminal mediation, and the issue of attribution of responsibility. To conclude, it is impossible to look at the current medical dispute arbitration system from the perspective of restorative justice because there is no process prepared where bona fide understanding and forgiveness take place, except for a mere monetary compensation. Nevertheless, resolution through medical dispute arbitration system has various upsides compared with resolution through a traditional criminal law. Therefore, dispute resolution through arbitration and through criminal law should have a mutually reinforcing relationship. However, prudence should be exercised in retaining or extended enforcement of exceptional clause on criminal punishment that has been integrated into the Medical Dispute Mediation Act since it is altering the existing issue of criminal accountability of medical accident.

Fifth, this report proposes sensible measures for dispute resolution and criminal punishment regarding medical malpractice. Basically, parties to a dispute should be able to choose between a law suit and arbitration. In other words, a medical dispute should be arbitrated under the transposition system of arbitration before the litigation, and the outcome of arbitration should not affect litigation. Furthermore, there should be a process where parties to a dispute talk with each other at length. Based on the foregoing premise, this report offers a variety of improvement measures for the status of K-Medi, arbitration system of K-Medi, proxy payment for damages, no-fault medical accident compensation, and exceptional clause on criminal punishment.