불법행위법의 확장과 의료과오책임의 현대적 동향

The boundary of tort coverage is expanding, and one example is the emergence of the medical malpractice liability rule. Such expansions are also discovered in various areas including legal interests, strict liability, remedies and professional liability. The interests protected by tort law was originally the physical interests concerning the body and property. It is not very long since tort law began to protect emotional and environmental interests. The modern trend in tort law is also found in the publicity right, which results in confusion of two interests including personal one and property one. The conflict of legal interests is one of the many characteristics of modern tort law. A major change in tort law theory is a trend towards understanding strict liability rule as one of the tort law principles including negligence liability rule. A remedy of injunction has been suggested in Korea to be accepted in tort law, although the remedy could be available even without any fault. The specialization in modern society has formed the professional liability rule in the tort liability. The medical provider is one of such typical professions. The professional liability in that case is the medical malpractice liability, which is composed of medical negligence liability and liability for breach of duty to disclose. The latter liability theory provided the patient's right to be informed, as well as right to self-determination to the interests protected by tort law. The actions of wrongful birth and wrongful life triggered the argument about the value of human life itself. The precedent concerning the Korean Supreme Court about proof of medical negligence and cause in fact is one of the precedents which many academics have argued over intensively. The standard of proof established in the precedent should be taken as a exceptional one, not the principle of the proof. In principle, the general rule of proof in tort law should be applied to the proof of medical negligence and cause, aside from special situations under which the precedent could be made. There are two alternatives in the cause of action of the medical liability: liability could be claimed for breach of contract as well as for delict. It has been improperly suggested that the two approaches have the same principle of proof of medical negligence, especially regarding medical liability. This paper criticizes the approach. There are three types in the cases where the results were a combination of the patient's physical conditions and the physician's negligent diagnosis. The first case is where the negligent diagnosis merely triggers the result; the second is the case where the negligent diagnosis exaggerates the result caused by the physical conditions; the last one is where the negligent diagnosis makes the probability of the result higher.