A Tale of Two Standards: Drift and Inertia in Modern Korean Medical Law

Abstract

Like all nations, the national character of Korea has been shaped by a variety of geographic and historical factors. Some of the characteristics that have emerged from Korea’s experience are ‘familism’ and ‘scientism’, both of which have had, and are having, a fundamental impact on the content and application of medical law. These phenomena, combined with recent events both inside Korea (eg: a physicians’ strike (2000) and the more important Hwang scandal (2005)) and outwith (eg: the spread of ‘informed consent’ (1980s), the commencement of the Human Genome Project (1990), and the cloning of Dolly the Sheep (1997)), have contributed to a flurry of recent governance activity in Korea. Given the latest legislative proposals offered, we explore two areas of Korean medical law with a view to exposing their trajectories. First, we examine the governance of the patient-physician relationship in the clinical setting, paying particular attention to consent and to liability. Second, we examine the legal-ethical control of biotech research in the medical research setting, paying particular attention to consent, quality control and limits. We conclude that these two arenas appear to be travelling down two dramatically different (if not divergent) roads; in the case of the former, drifting away from traditional practices, and in the case of the latter, remaining mired in imbalance and dominated by antithetical interests.