의료소송상 환자보호를 위한 방안의 검토 - 입증부담의 경감방안 및 적극적 위자료 인정의 필요성을 중심으로 -

For the protection of the patient's right in the medical malpractice case, the Korean court has alleviated the patient 's burden of proof compared to the doctor, and as for the explanation liability, the court has also converted the burden from patient to doctors. However, the court has reduced the good effect of such actions for patients by presenting unclear criteria specifying the physician's negligence. In addition, as the court was reluctant to approve the consolation money on default, the patient was forced to file a medical malpractice lawsuit against the doctors based on the tort liability. As a result, the patient was deprived of the good weapons based on the lawsuit of default. Therefore, for more active protection of patients, the followings are recommended. First, as for the so-called “cases that can be treated”, it is recommended that by approving the making of subcontract by special agreement, or approving the possibility of subcontracting by implicit agreement in case of the breach of explanation liability, the court moves the burden of proof from patient to the doctor. That would lead to the significant release of the burden of proof from the patients regardless of whether the uncertainty of the court physician's fault is established or not. Second, it is recommended that the court actively approves the consolation money for the default related to the medical malpractices in addition to that for the tort liability. These kinds of actions would guarantee that the patient can effectively get the effective weapon for attacking the doctors in the medical lawsuit.