의료사고와 형사책임의 제한 - 일본의 의료사고조사 제도(医療事故調査制度) 시행 전후의 논의를 중심으로

The issue of limiting criminal liability for medical malpractice by doctors remains one of the most heated debates of all time. This article examines the discussions before and after the implementation of Japan's medical accident investigation system and seeks to derive implications for medical accidents and limiting criminal liability. To this end, we first examine the circumstances, content, and limitations of the system's implementation, and then examine the discussions surrounding the nature of medical accidents and criminal liability within this process. Next, we analyze the debate on the necessity of limiting criminal liability on medical accidents in Japan and derive implications for our own understanding. In conclusion, the discussions in Japan offer the following insights. First, to alleviate medical professionals' anxiety about criminal justice intervention, we need to regularly collect statistics related to criminal medical trials and analyze and disclose the haracteristics of actual case law. Second, it is necessary to promptly and appropriately appoint an expert witness during the investigation stage to determine the extent of medical malpractice, thereby preventing unnecessary investigations and trials later. Third, a system that can prevent medical malpractice should be considered before criminal liability for medical accidents is pursued. To this end, Japan advocates various administrative sanctions, imposing them on relevant institutions as well as individual doctors. Fourth, it is still premature to discuss amending the law to provide criminal immunity for negligence. While discussions on this issue exist in Japan, they are seeking to establish workarounds rather than addressing the issue through immediate criminal law revisions.