의사의 설명의무에 관한 최근 판례의 동향과 그 비판적 고찰

• 영문명: The trend of recent precedents and critical study on Informed Consent
• 발행기관: 한국재산법학회
• 저자명: 宋榮珉(Song Young-Min)
• 간행물 정보: 『재산법연구』財産法硏究 第23卷 第3號, 229~259쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.02.28

영문 초록

  The judgement that admit the medical technological negligence and the responsibility for violation of Informed Consent in parallel could not be seen after the Supreme Court judgement 94DA35671 in 25th November 1994, Supreme Court judgement 93DA52402 in 10th January 1995, however the judgement that quote the responsibility for violation of Informed Consent assuming medical negligence and denying the judgement that reserve the decision on the violation of Informed Consent or medical negligence could be seen.
  The precedents, in judging the negligence of a doctor on medical negligence litigation, have shown the section of phenomenon whether the medical technological negligence exists or not in the first time, if it is difficult to admit former case, and whether the violation of Informed Consent exists or not in the second time.
  I suppose it is proper to consider the theory of moral right infringement for the effect of violation of Informed Consent.
  The core of the theory of moral right infringement is the strict distinction between infringement of will and infringement of body, in this case, the original functional scope could be admitted in Informed Consent denying the risk distribution by the Informed Consent through the respect for risk distribution rule of remedy behaviour.
  The reasonable confirmation of will responsibility could be tried through the confirmation of responsibility scope on the risk accompanied with remedy behaviour, and further the role assignment of remedy liability and Informed Consent.
  In the theory of moral right infringement, the body protective function of Informed Consent on the assumption that the technical fault and the explanatory fault are placed on even ground admitting the role of distribution device of remedy risk to Informed Consent after considering the explanation guaranteed justification effect(availability) of agreement has been denied.
  The attitude of precedents of Supreme Court toward the form of existing medical negligence litigation seems to succeed to the precedent of Germany.
  However the attitude of litigation practice like this could not be considered as reasonable thing, and a judge has to study the proof of medical negligence of doctors through all means.

목차

Ⅰ. 서론
Ⅱ. 의사의 설명의무위반의 효과에 관한 학설과 판례의 동향
Ⅲ. 의료행위의 특수성과 설명의무위반의 입증책임
Ⅳ. 의사의 설명의무의 보호법익
Ⅴ. 결론
참고 문헌
〈Abstract〉

키워드

의사의 설명의무 의료시술과오 의료과오소송 인격권침해설 신체침해설 자기결정권 informed consent medical technological negligence medical negligence the theory of moral right infringement the theory of physical infringement self determination