회복적 사법과 의료분쟁조정법상의 형사처벌특례제도

Medical practice is a concept that is hard to define due to its manifold aspects and rapid advancement of medical technology. However, it is on the premise that medical practice is based on trust between doctors and patients, which leads to a tendency to consider the both parties in the case of medical disputes regarding the Criminal Law. Particularly, an exceptional clause on criminal punishment in the Medical Dispute Adjustment Act is a part of Restorative Justice, which is potentially to be established as a proper system for the purpose of restoring trust between doctors and patients and of both parties’ interests. As an exceptional clause on criminal punishment becomes enforced, it came to be the most crucial for the agreed ‘compensation’ to be guaranteed in resolving medical disputes. However, it does not necessarily mean that the cases of medical disputes which have to be regarded as criminal cases become of civil cases. An exceptional clause on criminal punishment has to be operated through mutual cooperation with the conventional criminal justice system, and it should be settled within the context of criminal conciliation. In this regard, legal requirement and legal force on the exceptional clause on criminal punishment have to be reconsidered. In other words, relations between the degree of violation to the duty of care (minor negligence, serious negligence, negligence in the conduct of business) and the consequences (minor injury, serious injury, death) should be examined, while leading to differentiate the legal force such as prohibition of indictment or voluntary reduction.