태아의 사망을 임부에 대한 상해로 볼 수 있는가

Historically, our academic community has developed various legal and interpretive theories regarding ① whether pregnancy resulting from rape constitutes bodily injury and ② whether medical procedures performed to remove a fetus that has died due to medical malpractice constitute professional negligence resulting in bodily injury. In rape cases, most case law and academic theories have excluded rape-related-pregnancy from the category of bodily injury, viewing it as a natural manifestation of a woman's physiological functions (see Supreme Court decisions 2019.4.17. 2018Do17410; 2019.5.10. 2019Do834). Similarly, when assessing injuries resulting from professional negligence during/after the labor or abortion, our criminal law does not interpret the fetus as part of the pregnant woman's body, nor does it consider unwanted abortion as a violation of the woman’s physiological functions of nurturing and giving birth to the fetus, which would constitute bodily injury to the woman. Therefore, acts that result in the death of the fetus considered to be an impairment of the woman’s physiological functions or a detrimental change in her state of health which constitutes an injury to a person’s body (see Supreme Court decision 2007.6.29. 2005Do3832). In addition, recent lower court cases have considered whether assault charges apply when a pregnant woman is assaulted in situations of domestic or dating violence, resulting in a miscarriage. However, these cases have largely reiterated the above legal principles, leading to the conclusion that both pregnancy and miscarriage resulting from violent crimes are not recognized as bodily injury to the woman. This paper questions the appropriateness of this conclusion and aims to demonstrate that miscarriage caused by unlawful injury to a pregnant woman's body constitutes an impairment of her physiological functions or a detrimental change in her state of health, thereby encompassing miscarriage as bodily injury to a woman under the crime of bodily injury(Criminal Code Article 257). To this end, the paper first examines the position of the pregnant woman and the fetus within the framework of the crime of bodily injury and analyzes case law and academic theories on whether pregnancy constitutes bodily injury in the context of rape-related pregnancy (Ⅱ). It then compares case law and academic theories on whether the death of a fetus constitutes injury to the pregnant woman in cases of professional negligence resulting in or injury resulting from unwanted abortion(III). Through this analysis, the paper concludes, first, that in cases of abortions performed without the woman's consent, especially when the miscarriage is caused by the violence, such acts cannot be evaluated in the same context as the injuries that inevitably accompany from abortions performed with the woman's consent. Second, unlike the exceptional protection of the right to life of the fetus as an independent legal interest in abortion provisions, in the context of assault and battery crimes the fetus and the pregnant woman are organically connected, and the death of the fetus simultaneously means harm to the woman's body. In particular, the body of a pregnant woman is more vulnerable to external attack than that of a non-pregnant person. In intimate relationships, pregnancy and childbirth have a great protective value, so it is imperative to prevent violent crimes against pregnant women. Historically, during the Joseon Dynasty, there were provisions for severe punishment for assaulting a pregnant woman. In modern times, however, there is a loophole in the law that makes it difficult to prosecute assault and battery (Article 262) and injuries resulting from non-consensual abortions (Criminal Law Article 270, Paragraph 3) unless the victim claims injuries other than miscarriage. In addition, the disparity in legal penalties between injury resulting from abortion and assault resulting in injury is a serious problem. Since the body of a pregnant woman not only naturally undergoes physiological functions for the nourishment and birth of the fetus but is also accompanied by significant changes in health status, acts that violently interrupt and destroy this process, causing miscarriage, can be understood as impairment of physiological functions leading to post-pregnancy nourishment and childbirth, and as harmful changes in health status. Consequently, in cases where the fetus dies as a result of acts not regulated by the provisions on illegal abortion, the miscarriage itself shall be considered a bodily injury to the pregnant woman.