의료행위의 정당화와 면책가능성

Abstract

The meanings of ‘medical practice’ or ‘act of medical treatment’ in the aspect of criminal law are in the spotlight again, since the medical community strongly demands the exemption from criminal punishment for medical malpractice. At first, it was considered that act of medical treatment falls under a category of ‘personal injury’, but it is justified as the act of work, However, these days, there is a conflict of opinions between one that act of medical treatment is justified by the consent of the victim, and the other that the act does not constitute the crime from the beginning. This paper starts from the premise that basically, the act of medical invasion itself is personal injury. However, with emphasis on the consent of the victim, and its premise-liability of explanation, there are problems such as excessive explanation or decision on light compensation for violation of liability for explanation. Therefore, this paper focuses on the fact that doctor’s liability for explanation is legislated, and considers that the liability of explanation could be the part of the contents of the work of doctors. However, as the punishment of the doctor is not the best, so the act of medical invasion should be boldly exempted from the punishment, beyond being justified as the act of work. For instance, in the case of arbitrary medical treatment, there is already some possibility to be justified depending on urgency, but even if not, there are ways for justification, by applying error of prohibition, and broadening the justifiable reasons of the error. Last but not least, I want to make a point that even if the act of medical invasion is not justified or exempted, the punishment should be in the range of the statutory punishment of ‘professional negligence resulting in injury’, and the awkwardness in it should be ultimately solved by legislation. Also, if the medical community do their best to reform themselves, as requested, then we can employ an exceptional clause for medical malpractice, in accordance with Act on Special Cases concerning the Settlement of Traffic Accidents.