이른바 ‘원치 않은 아이의 出生으로 인한 損害賠償’에 대한 오스트리아 最高法院의 判例

Abstract

Recently, the supreme court of Austria has decided several cases of wrongful birth, rongful life and wrongful conception. According to the ratio of the decisions, in wrongful birth cases, medical doctor would be responsible for the full maintenance to the handicapped child, whereas in wrongful conception cases, he wouldn’t at all. H. Koziol and F. Bydlinski agreed with the decisions, supporting the result by the reason as follows : a parents-child relationship is made up with not only the burden of maintenance but also the pleasure of having a child, the untearable complex of which prevents it from being considered as any kind of detriment. However, the parents-child relationship as a whole can be considered as a detriment when the child is handicapped, raising the child means an extraordinary burden to the parents. In normal situation - when a healthy child is born, the principle of liability is subordinate to the principle of the respect of the child’s personality, while it isn’t in the abnormal situation - when a handicapped child is born. In spite of all these arguments, the supreme court of Austria doesn’t make it clear whether it follows the reasoning presented above or not, why and how it differentiates both types. Though the decisions are under strict criticism, they are expected to give some intuition to the our discussion on the same problem.