의료계약

Abstract

This paper reviewed the legal nature of medical contracts and the legislative method of medical contracts by reviewing the problems arising in the process of establishing, implementing, and terminating medical contracts in relation to delegation contracts under civil law.
 In general, non-typical contracts can be divided into ①completely newly created, ②similar to a typical contract, but they are deformed beyond acceptance as a typical contract, and ③the specificity of the contract needs to be discussed.
 Delegation contracts and medical contracts have a common purpose of handling affairs, but there are differences in essential aspects between delegation provisions under the Civil Act for the purpose of handling property affairs and medical contracts accompanied by invasion of human life or body.
 Therefore, the norms of delegation contracts are rarely actually applied to medical contracts, or there are cases where there is partial intervention in public law, but there are cases where they have theoretical continuity.
 However, in the essential elements of both contracts, medical contracts have their own characteristics independent of delegation contracts. Medical contracts are not completely newly created or modified to the point that they cannot be included in a typical contract. Therefore, it should be said that it is a type that needs to be discussed in the delegation contract. In other words, it should be said that delegation contracts and medical contracts have a relative relationship between general types and special types, abstract types and specific types, or basic types and subtypes.
 Even if medical contracts are subordinate to delegation contracts, the difference between delegation contracts and medical contracts should be seen as larger than non-typical contracts (franchise contracts, etc.) in the form of different office processes theoretically and practically.
 Since medical contracts are basically based on the rules of human life and body invasion, they should be considered to have a significant difference from the civil law's delegation regulations governing property management. If so, it should be seen that there is a characteristic that cannot be solved by a delegation contract under civil law and a new type of typical contract under civil law.
 Civil law discussions on the obligations of doctors and patients arising from medical contracts are still in a fluid state. The Civil Code established the basic framework of contracts between individuals.
 It is not appropriate to incorporate medical contracts with strong public legal elements within these civil codes. As for the legislative form of medical contracts, it is considered reasonable to enact civil special law specializing in medical contracts.