국제보건의료분쟁의 해결

Resolution of International Healthcare Disputes

Since last century, international trade of pharmaceuticals and medical instruments have increased and healthcare insurance business expanded over the national border. Recently, international medical tourism and cross-border operation of medical institutions have become active. Accordingly, disputes in international healthcare area have also increased. This article focuses on international disputes between patients and medical service or products providers. The significant characteristics of the healthcare industry are the formation of healthcare community for its constituents. This is because healthcare is closely related to, and a part of social security system of a community. Such healthcare community can be formed nationally or regionally. The regional healthcare community may cover a part of a country or several countries. The healthcare community defines and regulates the relationship among the constituents, i.e., patients, medical service providers, drugs and medical products suppliers and health insurers. Even a private medical treatment contract between a patient and a medical institution is strongly influenced, if not governed, by the regime of the healthcare community. We can find many international conventions and treaties which mention or rule international healthcare matters. For example, the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, EU Charter of Fundamental Rights 2000, Convention on the Elimination of all Forms of Discrimination Against Women, 1979, ILO Occupational Safety and Health Convention 1981, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990, Convention on the Rights of Child 1989, Convention on the Rights of Persons with Disabilities 2006, The international trade laws also deal with health protection such as the WTO Treaty itself and the Agreement on the Application of Sanitary and Phytosanitary Measures(SPS Agreement). As directed by Article 57 of the Charter of the United Nations, the International Health Organization Constitution was established in 1946 to form the WHO, which is in charge of the international public healthcare matters. The WHO has promulgated the International Health Regulations of which the most current version was amended in 2005. In addition to these international hard laws, there are numerous international soft laws in medical treatment. Some of the well known international rules are Nuremberg Code 1947, WMA International Code of Medical Ethics 1949(currently 2006), Declaration of Helsinki-Ethical Principles for Medical Research Involving Human Subjects 1964 (currently 1974), Declaration of Alma-Ata at International Conference on Primary Health Care 1978, and WMA Declaration of Lisbon on the Rights of the Patient 1981 (currently 2015). Some of those rules became customary international laws. If not, they may be treated as a part of the “generally recognized international rules” as provided in Article 6 of the Korean Constitution or as those of the “general principles of law recognized by civilized nations”under the international law. Due to characteristics of healthcare service, the traditional rules of private international law do not apply to healthcare disputes. Rather, the law of the relevant healthcare community apples in most cases. The only exception is the case where the patient voluntarily left his home to get the healthcare service in a foreign country. In such case the law of patient’s healthcare community is excluded and the law of the healthcare institution will apply unless the parties agreed otherwise as to the governing law of the healthcare service.