의료과오소송에 있어서 판례상 책임제한 사유의법적 근거에 대한 비판적 고찰

A critical consideration on the legal bases of liability limitation in the medical malpractice suit judicial precedent Kim, Il-Ryong The fair sharing of damage between an assailant and a victim is the highest principle in tort law. Regarding the adjustment of damage amount for the fair sharing of damage, ‘comparative profit/loss’ and ‘comparative negligence’ are applied. However, the judicial precedents limit the responsibility of the assailant or decrease the compensation amount in medical malpractice suits based on previous illness, physical constitutional factors, the danger extent of disease, the possibility of poor prognosis, the difficulty/danger of surgery, special nature of medical practice, the limitation of clinical medicine, the intervention possibility of other unknown causes, the properness of ex post action and realistic limitation of medical treatment. The precedents seek the reason in the analogical application of comparative negligence provision, fair sharing principle of damage or good faith principle. The contents of fair sharing principle of damage or good faith principle are originally empty; therefore, they should be applied as supplements when there is no individual provision. Accordingly, the application scope of those should be reduced to minimize the destruction of legal stability caused by the abuse of those provisions. Further, these provisions should not be analogically applied on the matters, which are beyond the meaning of ‘negligence’ in the comparative negligence provision. In this sense, it is difficult to accept the position of the precedent. When the contents disclosed by the precedent as the causes of the decrease in compensation and the limitation of responsibility would be frankly reviewed, it is easy to know that the key is the extent of condemnation possibility on the negligence of the assailant. Then, it is possible to say that; the stipulation necessity of separate basis provisions because the compensation scope can be adjusted by interpreting the ‘negligence’ in Article 750 of Civil Code together with the extent of condemnation possibility on the assailant, the method of decreasing the compensation amount by applying Article 765 of Civil Code, the position to explain the matter by focusing on the satisfaction function of compensation and the opinion to acknowledge the causal relationship at certain ratio are all roundabout methods. In order to provide people using judicial authority with predictability and legal stability and enhance the trust of people in jurisdiction, it is believed that the future tasks would be reinterpreting and categorizing the matters of compensation decrease as the reasons for decreasing the condemnation possibility on the assailant and suggesting a reasonable standard which would include the determination of corresponding ratios.