의료분쟁에 대한 형법적 대처에 있어서 새로운 논의

Because of today’s earning growth and great gains in medical technology, the area of medical treatment is extended to general civic life for leading an healthy and happy life, not only confined to pure physical remedy. Against this backdrop, this thesis intends to suggest various solutions for medical dispute, that increases rapidly these days. In aspect of concrete methodology, civil and criminal actions can be intervened in medical dispute simultaneously. This thesis considers these points and mixed-loading legal system and examines arguing points related criminal solutions specially. At first, in the aspect of criminal factor, medical practice should not be considered as a criminal factor. The reasons are as follows : It may be hard to consider that the subjective attitude of doctor in medical practice is illegal. And mens rea for criminal injury must contain the intention of hostile harm to human body. Medical treatment should not be judged as a conduct, which makes some hazard. Secondly, in the aspect of negligence, medical mistake as the object of criminal punishment should be judged by the principle of ‘permitted-risk’and the assumption of causation between mistake and result or the burden of proof’s switchover should not be permitted in criminal court. Finally, depending on the principle of ‘Restorative Justice’, the exception of criminal punishment should be expanded to the case of grievous bodily harm, and in case of successful mediation, the offender’s indictment should be suspended with the condition, that he must carry out items of understanding for the mediation.