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Statutes

Act on Remedies for Injuries from Medical Malpractice and Mediation of Medical Disputes Chapter 5 Advances for Damages Article 47 (Advances for Damages))(1) If a victim in a medical malpractice case fails to receive money, although he/she falls under any of the following subparagraphs, he/she may file a claim for the money receivable with the Mediation and Arbitration Agency to pay it vicariously: Provided, That the foregoing shall apply only where the judgment is final and conclusive if the case falls under subparagraph 3: 1. Where mediation has been concluded successfully, an arbitral award has been granted, or a mediation statement has been prepared under agreement pursuant to Article 37 (1) while mediation proceedings are pending; 2. Where a mediation statement has been prepared pursuant to Article 67 (3) of the Framework Act on Consumers; 3. Where a court has prepared a deed of assignment for execution that orders the operator or public health or medical professional of a public health or medical institution or any other person who is found to be a party to pay money in civil proceedings. (2) The operator of a public health or medical institution shall bear expenses necessary for the advance for damages under paragraph (1), and necessary matters regarding the amount of such expenses and the method and management of the payment of such expenses shall be prescribed by Presidential Decree. (3) The Mediation and Arbitration Agency shall establish a separate account for the advance for damages, as prescribed by Ordinance of the Ministry for Health and Welfare. (4) Notwithstanding the provisions of Article 47 (3) of the National Health Insurance Act, expenses to be borne by the operator of a public health or medical institution may be paid in the manner that the National Health Insurance Corporation pays some of medical care benefits, which shall be paid otherwise to the relevant medical care institution, to the Mediation and Arbitration Agency. In such cases, the National Health Insurance Corporation shall pay some of medical care benefits, which shall be paid to the relevant medical care institution, to the Mediation and Arbitration Agency instead of paying it to the medical care institution. (5) In receipt of a claim to pay an advance under paragraph (1) vicariously, the Mediation and Arbitration Agency shall examine the case and shall pay it in accordance with the standards prescribed by Ordinance of the Ministry for Health and Welfare. (6) Where the Mediation and Arbitration Agency pays an advance for damages pursuant to paragraph (5), it may demand an operator of the relevant public health or medical institution, or a public health or medical professional to reimburse it. (7) In demanding to reimburse an advance pursuant to paragraph (6), the Mediation and Arbitration Agency may write off the advance as a loss if it is impossible to have it paid off. (8) Necessary matters regarding the eligibility for, the scope of, and the procedure and method for paying advances for damages under paragraph (5), the procedure and method for demanding reimbursement under paragraph (6), and the scope of uncollectable advances and the procedure for the write-off of such advances as losses under paragraph (7) shall be prescribed by Presidential Decree.

Article 48 (Furnishing of Data)The Mediation and Arbitration Agency may request a public health or medical institution or a related agency to furnish it with data necessary for the reimbursement of advances and the write-off of advances as losses.

Article 25 (Object and Scope of Advances) (1) The object of advances paid under Article 47 (1) of the Act shall be limited to damages, and shall not include expenses for mediation, arbitration, lawsuit, etc. (2) The scope of advances paid under Article 47 (1) of the Act shall be the outstanding amount of damages, but shall exclude damages on or after each date specified as follows: 1. In cases described in Article 47 (1) 1 of the Act: the date mediation concludes or the date of an arbitral award, or the date a mediation statement is prepared; 2. In cases described in Article 47 (1) 2 of the Act: the date a mediation statement is prepared; 3. In cases described in Article 47 (1) 3 of the Act: the date a deed of assignment for execution is prepared: Provided, That it shall be the date a judgment is final and conclusive when the deed of assignment for execution is the judgement. Article 26 (Claim for Advances)  Each person who intends to file a claim for an advance pursuant to Article 47 (1) of the Act, shall submit a written request for advance, together with the following documentation: 1. In cases described in Article 47 (1) 1 of the Act: a written determination of mediation or a written arbitral award, or a mediation statement; 2. In cases described in Article 47 (1) 2 of the Act: a mediation statement; 3. In cases described in Article 47 (1) 3 of the Act: a deed of assignment for execution: Provided, That it shall include the certification that a judgment is final and conclusive when the deed of assignment for execution is the judgement. Article 27 (Payment, etc., for Expenses for Advances by Operators of Public Health or Medical Institutions) (1) The president shall obtain approval from the Minister of Health and Welfare where he/she intends to determine or change the annual target amount of a reserve fund for expenses necessary for the advances of damages (hereinafter referred to as “expenses for advances”) to be paid by the operators of public health or medical institutions pursuant to Article 47 (2) of the Act. (2) The president shall determine the standards for calculating expenses for advances to be paid by the operators of public health or medical institutions and the amount of money to be paid accordingly by each operator of public health or medical institution, within the range of the annual target amount of a reserve fund referred to in paragraph (1). In such cases, the president may determine the method for calculating the amount of expenses for advances differently according to the types of the operators of public health or medical institutions. (3) Where the president intends to collect expenses for advances as calculated pursuant to paragraph (2) from each operator of a public health or medical institution (including cases for collecting some of expenses for the medical care benefits under Article 47 (4) of the Act), he/she shall post public notice of the amount of expenses for advances to be paid by each operator of a public health or medical institution and of the period of collection before one month from the date of collection, and shall notify the National Health Insurance Corporation under the National Health Insurance Act of such notice. (4) Where necessary in order for determining the standards for calculating expenses for advances to be paid by each operator of a public health or medical institution pursuant to paragraph (2) or in order for collecting the calculated amount of expenses for advances pursuant to paragraph (3), the president may request that related materials be submitted to the National Health Insurance Corporation or the Health Insurance Review and Assessment Service under the National Health Insurance Act. (5) Where necessary in order for determining the standards for calculating expenses for advances to be paid by each operator of a public health or medical institution pursuant to paragraph (2) or in order for collecting the calculated amount of expenses for advances pursuant to paragraph (3), the president may request that materials related to the following matters be submitted to local governments: Newly Inserted by Presidential Decree No. 26317, Jun. 15, 2015 1. Matters related to the opening or closure of a public health or medical institution; 2. Matters related to changes in the opening of a public health or medical institution; 3. Matters related to changes in the registration of a public health clinic, public health branch clinic, or public health and medical care center. (6) Where any operator of a public health or medical institution becomes unable to continue operating a public health or medical business due to closure, the president may fully or partially pay expenses for advances paid by the operator of the relevant public health or medical institution by obtaining approval of the Minister of Health and Welfare. Newly Inserted by Presidential Decree No. 26317, Jun. 15, 2015 Article 28 (Reimbursement of Advances)  (1) Where the president has paid an advance for damages pursuant to Article 47 (5) of the Act, he/she shall, without delay, request that the operator of the relevant public health or medical institution or the relevant public health or medical professional (hereinafter referred to as to "person obliged to reimburse") pay the full amount of the advance to the Mediation and Arbitration Agency within a specified period. (2) Where the president obtains the amount of the advance from a person obliged to reimburse after making a request pursuant to paragraph (1), he/she shall include the relevant amount of money obtained into an account for the advances for damages referred to in Article 47 (3) of the Act. Article 29 (Disposition of Write-Off of Losses of Advances) (1) The president may write off losses with respect to any of the following advances, with approval from the board of directors, pursuant to Article 47 (7) of the Act: 1. Where it is impossible to exercise the right to demand reimbursement due to such grounds as the death, loss of the juristic personality, missing, etc., of a person obliged to reimburse; 2. Where a person obliged to reimburse owns no assets or where even the assets of a person obliged to reimburse falls short of the amount of value of a claim to reimburse in any of the following cases: (a) Where it is verified that the assets of a person obliged to reimburse will have no residual value after being appropriated for expenses for the procedures for exercising the right to demand reimbursement; (b) Where it is verified that the assets of a person obliged to reimburse will have no residual value after being appropriated for the payment of national taxes and local taxes or the payment for claims secured by the right of mortgage, etc., which takes precedence over the claim for an advance. 3. Where a statute of limitations period on the claim to reimburse has expired; 4. Where the disposition of the write-off of losses is approved by the board of directors for any other applicable grounds falling under any of subparagraphs 1 through 3. (2) Where it becomes possible to exercise the right to demand reimbursement due to grounds, including that a person obliged to reimburse who was missing is found or other assets which can be seized, is found after writing off an advance as losses pursuant to paragraph (1), the president shall, without delay, revoke the write-off.

Article 12 (Advances for Damages)The procedure and method of setting up the account for advances for damages under Article 47 (3) of the Act shall be approved by the Minister of Health and Welfare and shall be determined by the President of the Korea Medical Disputes Mediation and Arbitration Agency. Article 13 (Criteria for Screening of Major Claims) The criteria for examination of the claim for advances for damages pursuant to Article 47 (5) of the Act are as follows. 1. Whether the claimant is claiming advances for damages in a fraudulent manner. 2. Whether the claimant is likely to receive advances from the defendant. 3. Additional standards put in place by the Director for the effective review of the claimant's claim