의료사고에 있어 과실범의 양형판단과 특수성

Abstract

Many people receive treatment at the hospital to cure the disease. However, medical accidents that have been damaged by doctors' negligence or hospital errors often occur. It is not an exaggeration to say that the victim is suffering damage in various directions as the burden of proof is left to the victim (patient) for the damage caused by such a medical accident. In addition, our criminal law is so-called 'justifiable act (Article 20), so even if the result is not good, it is considered to be a reason for illegal sculpture. However, if it does not fall under the grounds for illegal sculpture, punishment is made according to the law of the negligent offender. Negligence offenders are weaker in illegality than intentional offenders, and the Korean Criminal Law also requires that negligence offenders be punished only when there are separate provisions (Article 14). If a constituent requirement result occurs due to medical negligence, the legal principles of negligence offenders may be applied, and as mentioned, negligence offenders are subject to punishment only when there are separate constituent requirements, so the criteria for punishment are not clear. Accordingly, it seems necessary to set the criteria for determining sentencing. In Japan, many discussions began to take place on the sentencing of medical accidents at medical institutions and academic societies in the wake of the Fukushima Prefectural Ono Hospital case regarding criminal responsibility for medical accidents. In this situation, many precedents related to medical accidents have been accumulated in Japan. Regarding the liability of negligent offenders, it is necessary to review the aspect of negligence, the duty of care, and the contents of negligence, and in relation to sentencing, it is necessary to review what factors are necessary for determining sentencing. However, in the case of medical accidents, they are considered negligent offenders, and the criteria for determining sentencing have not been clearly established, so it seems necessary to review them. Therefore, this paper examined similar accident cases among medical accident cases in both countries so that they can be compared. As a result, common factors to be taken into account were found along with the situation of medical accidents, and this confirmed that there was a tendency to be different from sentencing judgments in other negligence crimes, especially general occupational negligence and injury crimes. Most medical accidents were sentenced to probation except for fines, and imprisonment or higher was extremely rare. In addition, with regard to the imposition of punishment, Korea and Japan seem to have strong preventive and educational aspects as a function of punishment rather than the imposition of retributive sentences. In this paper, we reviewed the criteria for sentencing judgment based on medical accident cases in Korea and Japan, and based on this, we hope that it will be of great help in discussing sentencing in future medical accident related cases.