의료과오소송에서의 증명방해이론

• 영문명: Theory of Hindrance to Evidence Proving in Medical Malpractice Litigation -Focusing on Basis and Effect of Judicial Punishment on Hindrance to Evidence Proving-
• 발행기관: 원광대학교 법학연구소(의생명과학법센터)
• 저자명: 이정환(Lee Jeong Hawn)
• 간행물 정보: 『의생명과학과 법』제9권, 33~63쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2013.06.30

영문 초록

Term of medical malpractice litigation has not been accurately defined as a legal concept but it may be defined as a suit filed by the part of patients pursuing damage compensation against the people including medical professionals, who provided a medical practice at issue, and alleging that the accident occurred out of the fault made in the course of such medical practice. In these medical malpractice litigations, it is difficult to prove the existence of objective facts causing a medical malpractice because: reenactment of such facts is hard to be made compared to those of other litigations for general damage compensation; and most of evidence in medical malpractice litigations are owned by the dependants, which make it hard to prove without cooperation of those dependants. Thus, it is said that this difficulties in fact proving is caused by the nature of medical practice itself. Therefore, applying general theories of burden of proof to medical malpractice litigations is necessary to be adjusted based on realities of medical malpractice litigations because such application may result in an one-sided disadvantage of difficulties in proving evidence on the patients, the plaintiffs, whatever the cause of action of such medical malpractice litigation is tort or failure to perform obligations. In response, it has been actively discussed to adopt theories including theory of alleviation of burden of proof, theory of conversion of burden of proof and the one of hindrance to proof of evidence. In this paper, I would like to deal with the theory of hindrance to proof of evidence and, under that theory, in the event that the evidence proving of a party having burden of proof becomes significantly difficult or impossible due to intentional misconduct or negligence of the opposite party having no burden of proof, such circumstances must be considered and adjusted in fact finding as an advantage of the party having burden of proving. In our country, this theory of hindrance to proof of evidence started to be discussed in 1970s and, on March 10, 1995, the Supreme Court in its decision adopted such theory with respect to the medical malpractice litigation on its reasoning that a party is allowed to have free suspicion so as to make the other party be at a disadvantage. Thereafter, lots of case laws based on such reasoning have been made so far. Under the present provisions of the Civil Procedure Act in Korea, there is no general provisions for judicial restriction and penalty on the conducts causing hindrance to evidence proving but only partial or specific provisions set forth them. In the event that the evidence proving of a party having burden of proof becomes significantly difficult or impossible due to intentional misconduct or negligence of the other party having no burden of proof, the other party should be imposed by certain punishment by the court and the theory of hindrance to proof of evidence appears at the stage. In such case, the issues are: if such conduct of hindrance is recognized, what kinds of judicial punishments must be imposed (considering their effects); and, if a punishment is imposed by the court, in what cases it can be justified (the grounds of punishment). In this paper, I examine the grounds and effects of judicial punishment under the theory of hindrance to evidence proving regarding medical malpractice suits in order to find alternatives to overcome the limitations of present laws in Korea so that a fairness is realized in the course of litigation in practice.

목차

Ⅰ. 서론

Ⅱ. 증명방해의 소송상 제재의 근거(이론구성)

Ⅲ. 증명방해의 효과

Ⅳ. 결론

참고문헌

[ABSTRACT]

키워드

의료과오소송 증명방해 사안해명의무 불이익의제설 증명책임전환설 Medical malpractice litigation hindrance to evidence proving burden of explanation of issues theory of fictional disadvantage Theories for shifting the burden of proof