조산사의 과실로 사망한 태아반출을 위한 제왕절개시 상해의 결과귀속여부와 사람의 시기

In this case that an unborn child was dead owing to the negligence of a midwife and it was taken out through the incision of uterus and abdomen, this precedent did not acknowledge the charge of professional negligence resulting in the injury in spite of the confirmation of the negligence of the accused. Especially the precedent decided that it couldn’t conclude a causal relationship between the injury, the operation for taking out the dead unborn child and the negligence of the accused, because of no choice except a Caesarean operation. And it also decided that though a causal relationship was accepted, the court couldn't impute the charge of professional negli- gence to the accused, because of the illegality exclusion of a doctor's operation. However, the point of view that a causal relationship can’t be accepted, can’t be acknowledged, owing to the result of a precise analysis through the theory of the condition and the objective imputation. And the valid bases on the point of view that a charge couldn’t be imputed to the accused because of the illegality exclusion of doctor’s operation, wasn't discovered in the result of the analysis. This precedent decided as ever the human's beginning by the theory of the pangs of child birth, even though this is odd case which needs a caesarean operation. And it rejected the outstanding standard proposed by prosecutor, owing to the reason that it can’t be objective standard. However, if there was more precise examination on it by the standard that was indicated already by me, the court could have suggested the quite meaningful standard on the human’s beginning, in a point of time that there isn’t any view point of the precedent on human’s beginning and the theory related with it is not united.