치료행위의 헌법적 정당성과 위법성조각의 형법적 근거

Abstract

The surgeon's operation is a physical invasive act that guarantees the best treatment effect among the various treatment methods of modern medicine. Treatment actions aimed at improving or recovering the patient's life and health should be left to the doctor's expertise and discretion from the medical point of view. The patient's right to self-determination is important, but it is respected only when the patient survives. It should not be easy to give indulgence for the consequences of death solely because of self-determination of life. There is no life anywhere that can be given up under any circumstances, and there is no unprotected life that can be given up. On the issue of whether the treatment of a doctor is equivalent to an injury under criminal law, the Supreme Court has conventionally carved out the illegality of the injury crime by judging it as an 'action caused by work'. However, in the Supreme Court's decision of 92 Do 2345, it was determined that the misconduct was made by "the consent of the victim", based on the implementation of the doctor's sufficient explanation obligations to the patient. In general, academia understands that the violation is carved by the consent of the victim or by the presumptive consent of the victim, based on the patient's right to self-determination as in precedent. But in this paper, unlike many commentaries, it was analyzed that the intendment of the precedent is regarded as a step and process for identifying and judging medical malpractice with the consent of the patient who is due to fulfill the doctor's sufficient explanation obligation. The Supreme Court understands that he justification for the treatment of doctors under criminal law is not found with the consent or presumptive consent of the victim(as is generally claimed), but is still derived from Article 20 of the Criminal Law(justifiable act) 'action caused by work' as in the existing position.