의료계약과 치료중단에 있어서의 의사의 보증인적 지위 - 보라매병원 사건을 중심으로 -

Abstract

The so-called Boramae hospital case is that patient's conservator claimed discharge against medical advice, and doctors who accepted that demand were indicted for murder. In this case, there are many issues of criminal law(like judgement of act and omission, legal property of treatment ceasing, duty to act of the doctor in treatment ceasing in case of confirming omission, and so on). This paper begins with the examination of legal property of the medical contract and we discuss it mainly on an existing related law and a domestic discussion with Boramae Hospital case how the property of such a medical contract can be applied to the confirmation of the duty to act of the doctor when a treatment ceasing is accepted in omission. Doctor has legal, contractual, social-conventional duty to give medical treatment continuously in spite of the demand of the discharge of patient or patient's conservator. It is also from the voluntary undertaking of the doctor. The confirmation of doctor's duty to act is clear by a law of the emergency medical care Article 10 above all. As we have discussed it with the property of the medical contract, the medical contract is non typical contract which is similar for mandate so that the provision of this article with respect to mandate shall apply in conclusion and cancellation of the contract. If it is so, demand of the discharge of patient's conservator despite possibility of survive is high when treatment was maintained not stand because self-determination can't be represented. In addition, doctor's duty to give medical treatment continuously is not thought only to be the moral obligation by all means, so it can be accepted as the duty according to social-conventional rules following the restrictive view of it.