의료과오에 대한 형사과실과 그 판단기준 ― 일본의 판례분석과 그 시사점 ―

This paper analyzes the criminal case of Japan, which has a criminal system of negligence with our country in relation to the case of criminal medical malpractice, and also seeks criteria for determining criminal malpractice for medical malpractice. the contents are as follows. First, Japanese’ judicial precedent, In judging the obligation to foresee results and evasion of results, are judged by the doctor's negligence based on the medical level at that time. in addition, medical and surgical errors require medical judgment, and only if the degree of deviation from the medical level at that time is considered large or a serious negligence, the criminal responsibility for the doctor is recognized. however, criminal liability for medical personnel, in the case of medical errors regarding “technical matters” that do not require medical judgment, is relatively easily recognized. Second, even if the doctor was aware of the risk of the outcome, he neglected the doctor's negligence because it was difficult to avoid the outcome at the medical level at the time. therefore, due to the nature of medical practice, doctors often recognize the risk of outcome, and it is necessary to consider the possibility of evading results in that it is easy to recognize the predictability. however, it is advisable to acknowledge the negligence when a medical practitioner negligently takes into account the reckless attitude and lack of skill in recognizing the specific risk of the outcome. Finally, a simple medical mistake is a rudimentary and serious mistake. in this case, since the degree of neglect of the duty of attention is remarkable, the tendency to recognize criminal responsibility as a serious negligence is increasing. on the other hand, in the case of diagnosis and surgery, it can be recognized as a serious negligence if it is evaluated as ‘significantly deviating’ from the action (medical level) to be taken by the average doctor who is in the same position as the doctor at the time of the act. however, the court's judgment may be divided even in the same medical case, and if you consider the anxiety felt by medical personnel, in setting individual and specific foreseeability for each medical case, it is desirable to judge the negligence based on the average doctors belonging to the field of expertise by presenting ‘objective attention obligation’.