강간에 의한 임신 및 의료과실에 의한 태아 사망과 형법상 상해

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Recently, the Supreme Court addressed whether an unwanted pregnancy resulting from rape constitutes bodily injury to the victim and whether the death of a fetus due to medical malpractice constitutes bodily injury to the pregnant woman. The Supreme Court ruled that an unwanted pregnancy resulting from rape does not qualify as bodily injury and thus denied the establishment of the crime of rape causing bodily injury. In a case involving the death of a fetus due to medical malpractice, the defendant was charged with occupational negligence causing bodily injury to the mother, arguing that the fetus should be regarded as part of the mother's body or that the physiological disruption to child-rearing and childbirth functions constituted bodily injury. However, the Supreme Court ruled the defendant not guilty. The question of whether an unwanted pregnancy caused by rape or the termination of a pregnancy due to medical malpractice constitutes bodily injury to the pregnant woman was raised, but the Supreme Court denied such interpretations. However, pregnancy resulting from rape causes significant physiological changes that can be considered an infringement on the victim's bodily functions. Therefore, recognizing unwanted pregnancy caused by rape as bodily injury and establishing the crime of rape causing bodily injury is deemed legally feasible and necessary from a criminal policy perspective. If interpreting this theory under the current legal framework presents difficulties, it may be necessary to consider limited legislation that penalizes rape causing bodily injury in cases where the victim is a minor who becomes pregnant. Similarly, regarding the death of a fetus due to medical malpractice, some argue that it should be recognized as causing bodily injury to the pregnant woman and thus establish the crime of occupational negligence causing bodily injury. While the Supreme Court rejected arguments such as considering the fetus as part of the mother's body and denied the establishment of the crime, a series of U.S. court precedents reflect a trend of recognizing miscarriages or stillbirths caused by medical malpractice as harm to the pregnant woman's health. Therefore, in cases where a fetus dies due to medical malpractice, there may be grounds to recognize such incidents as bodily injury by either viewing the fetus as part of the mother's body or considering the disruption of the mother's physiological functions. This paper examines the legal issues surrounding unwanted pregnancies caused by rape and fetal deaths due to medical malpractice, focusing on the concept of bodily injury under criminal law. It analyzes the relevant Supreme Court precedents in South Korea and reviews related U.S. case law and legislation before reaching a conclusion.