의사의 정당한 사유에 의한 의료계약 해지권 검토 : 환자의 진료협력의무 위반을 중점으로

Abstract

This paper argues that, from a civil legal point of view, before a physician's liability for damages arises from the non-cooperative behavior of a patient who is a medical contracting party, And the theory of inclusion as a contract termination right. The medical contract relationship between the doctor and the patient is normally regarded as a delegation contract in academia and case law. However, in the Civil Code, the delegation contract stipulates that either party may terminate the contract at any time. The delegation contract is a contract based on the personal trust relationship between the parties, so that if one party breaks the trust relationship, the other party can terminate the medical contract at any time. We call this the right of termination. However, doctors can not terminate a medical contract without a "justifiable reason" in medical law and emergency medical law. The doctor's right to terminate medical contracts is a limited right of termination because the physician can not exercise the right to terminate the court without justifiable reason. In order to exercise a limited statutory right of termination of a physician, there must be a patient's behavior that can be included in the abstract rule of "just cause." We refer to the behavior of these patients as violations of medical care cooperation obligations. Here, the nature of a patient's violation of the duty to cooperate with medical care is a violation that is subordinated to a "just cause" to violate the obligation of the new law to exercise the right to terminate the medical contract of the doctor. However, since the act of violation of patient's duty to cooperate is also an abstract act, it is necessary to consider concrete circumstances in violation of patient's duty to cooperate with medical care. The specific circumstances mean not only the physician's liability for damages, but also the circumstances that should be judged by the profit bridges that have a great deal of life and damage to the patient. Therefore, the right to terminate a medical contract of a physician should be considered as a limited right of termination, which is included in legitimate reasons, taking into account specific circumstances in the fact that it is a violation of a patient's medical cooperation obligations.