재난에 대한 법적 대응방안에 관한 고찰A Study on Law's Reaction to Mass Disasters
- Authors
- 김태한; 함영주
- Issue Date
- 2008
- Publisher
- 고려대학교 법학연구원
- Keywords
- disaster; collateral estoppel; the Federal Tort Claims Act; statutes of limitations; jurisdiction; Intrastate jurisdiction; Interstate jurisdiction; punitive damages; Multidistrict Litigation(MDL); 재난; 부수적금반언; 연방불법행위청구법; 제소기한법; 관할; 주내관할; 주간관할; 징벌적 손해배상; 복수구소송(廣域訴訟,MDL)
- Citation
- 고려법학, no.51, pp 407 - 437
- Pages
- 31
- Journal Title
- 고려법학
- Number
- 51
- Start Page
- 407
- End Page
- 437
- URI
- https://scholarworks.bwise.kr/cau/handle/2019.sw.cau/31125
- ISSN
- 1598-1584
- Abstract
- In the modern society, we are surrounded by many accidents and
products that causes mass disasters. People are suffering from sudden
mass death, disability and a large amount of property losses. Disasters
are routine in the sense that they are occur nearly every time and
every space. Disasters, we creates, are growing in severity and
frequency. Dangers are intensified by increases in world population,
concentration of people in urban areas, manipulation of the environment,
creation of new products through chemical and biological engineering
and closer links between various parts of the world through trades and
exchanges of technology.
Disasters are of particular concern to lawyers because they are
dedicated to the general proposition that people should be compensated
when they are harmed by others. Our goal has been to provide prompt
and full payment to those who are harmed by those who caused the
harm while minimizing the overall costs to the system. We fall far
short of this goal in connection with many disasters. Compensation is
often delayed and expensive.
The question is that we can handle claims arising out of mass
tort disasters with a more effectively in the present Korean judicial system. The answer is negative. If it is difficult to handel mass
disasters with the present Korean judicial system, how and what
direction have we take to improve the Korean mass tort system?
As a tentative way, I could recommend these ways as follows;
First, it needs managing disaster with only one judge. He or she
will be more strongly responsible for disaster management with regard
to en banc (collegiate court).
Second, it needs concentration of decision-making in a single
forum. Mass disaster cases need to be transferred (removed) to one
court. After that, the other courts have only to follow the decision of
the transferred single court.
Third, it is needed to make an efficient supporting human
resources to trier. Korean magistrates (Sabub-Bo-Joa-Kwan), special
expert (Jeon-Mun-Sim-Ri-Yo-Won), associate veteran judge (Jae-panyeon-
gu-kwan) could be supporting human resources in this system.
Forth, it is needed to make the best use of Korean pretrial
procedure (Byun-Ron-Jun-Bi-Jeol-Cha), which will be the core
procedure of Korean Civil Procedure in mass disaster cases. The new
Korean pretrial procedure also could be helpful to mass cases.
Fifth, it is needed to make a cap on mass tort award and
allocation in mass disasters. This could be a safeguard for the
wrongdoer of mass torts in the settlement process.
Seventh, it is needed to make a single distribution plan in mass
tort cases. Distribution plan could has its own procedural characteristics
according to each judicial system. The plan need to be flexible enough
to the existing conditions and adaptive to the victim's sentiments also.
Eighth, it is needed to create a national disaster prevention- and
management system in mass disasters. This National Disaster Court is
useful for torts system or for the use of administrative remedies and of international tribunals. These are one of the most efficient way of
controlling mass disaster. The national system of health and disability
insurance for all is also desirable.
Disasters inevitably will happen again and again in the modern
world. We only have to prepare to cope with a disaster in the best
way possible.
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