모자보건법의 모자보건센터와 중앙모자의료센터의 기능 개선방안

황종윤 한국모자보건학회 2019 한국모자보건학회지 Vol.23 No.1

The Mother and Child Act is the most important law set up to maintain and improve maternal-child healthcare. This act was established in 1973 and was revised to improve maternal-child healthcare. This act includes the establishment and management of a maternal-child healthcare center in the district, a maternal-child regional healthcare center in the province, and a national maternal-child medical center. In the baby boom era, maternal- child healthcare centers provided maternity care and delivery services as well as emergency obstetrical management, but those centers stopped providing maternity care in the low birth-rate era. The last revised act included the establishment of a national maternal-child medical center to care for the increase in the number of high-risk pregnancies. This review briefly evaluates the goals and roles of a maternal-child healthcare center and a national maternal-child medical center according to the Mother and Child Act, and integrates high risk pregnancies with a neonatal care center to renovate the maternity healthcare system.

원치 않은 출산소송에 관한 판례평석

박철호(Park, CheolHo) 한양법학회 2012 漢陽法學 Vol.23 No.1

Wrongful birth describes a cause of action or claim by parents of a deformed or defective child who allege that negligent advice as to the risk of genetic or birth defects or negligent treatment, or failure to abort a fetus, by the doctor deprived them of the choice of avoiding the child’s conception or of terminating the pregnancy. In these cases, parents of child with disability allege that because the defendant doctor breached the duty owed to the patient, they were denied the opportunity to make an informed decision. This claim lies on the basis that had it not been for the doctor’s negligence, the imperfect child would not have been born. In traditional medical malpractice lawsuits doctor’s negligence is the direct cause in the child’s disability, but in wrongful birth cases his/her negligence are the indirect causes of child birth. After this new type of lawsuit like wrongful birth action had been litigated in the United States in the 1930s many courts in Germany, France, UK including the United States have been recognized to recover to the parents for birth of child with disability. In contrast, in Korea, wrongful birth actions have been brought by parents alleging that the physician’s negligence of their child caused the injury in 1990s in many lower court and since that time these have been big issues legally and socially. While some lower courts have recognized in this new type cause of action, others have rejected it based on the difficulty in determining damages. On the other hand the Supreme Court of Korea has generally indicated negative attitude to the cause of wrongful birth action. However, Korean Supreme Court, for the first time as the highest Court, had decided to recover to parents of children with disabilities for the mental damages excepting for property damages in 2002. After this 2002 Supreme Court decision because there are only one judgment in Seoul Western District Court it can not be said that many wrongful birth actions will be brought sooner or later. But in a long-term perspective it can be said that this new type actions will be gradually increasing in Korea. It was apparent that Korean Courts still had a negative view to the cause of wrongful birth action. But because the Supreme Court’s 2002 decision agreeing to allow the parents of disabled child to recover damages for the mental anguish was said rather progressive, it may seems to be a positive outlook on this issue. Meanwhile many courts of Korea have determined whether it can allow the parents of disabled child to recover damages, basing on Article 14 of Maternal and Child Health Act, allowance standard of abortion. When the abortion of the disabled fetus only can be allowed depending on Article 14 of Maternal and Child Health Act, Courts allowed damages to the parents of children with disabilities. But this Article 14 has been designed to allow abortion because of the health of the parents and this is just standard to judge whether the maintenance of pregnancy is harmful to the health of the mother of fetus. Therefore, it is unreasonable that it should be decided to recover the damages to the parents in wrongful birth action whether or not to admit by the Article 14 of Maternal and Child Health Act. Thus, the court should change their views. So it should be decided to recover the damages to the parents in wrongful birth action because of the doctor’s negligence, the duty violation doctor’s explanation and the health of the fetus itself. In this paper, it was reviewed the Supreme Court’s 2002 decision, investigated about whether or not to admit demage recover in this type of action, and examined the compensation range.

원치 않은 출산소송에 관한 판례평석 -대법원 2002. 6. 25 선고 2001다66321 판결을 중심으로-

박철호 한양법학회 2012 漢陽法學 Vol.23 No.1

Wrongful birth describes a cause of action or claim by parents of a deformed or defective child who allege that negligent advice as to the risk of genetic or birth defects or negligent treatment, or failure to abort a fetus, by the doctor deprived them of the choice of avoiding the child’s conception or of terminating the pregnancy. In these cases, parents of child with disability allege that because the defendant doctor breached the duty owed to the patient, they were denied the opportunity to make an informed decision. This claim lies on the basis that had it not been for the doctor’s negligence, the imperfect child would not have been born. In traditional medical malpractice lawsuits doctor’s negligence is the direct cause in the child’s disability, but in wrongful birth cases his/her negligence are the indirect causes of child birth. After this new type of lawsuit like wrongful birth action had been litigated in the United States in the 1930s many courts in Germany, France, UK including the United States have been recognized to recover to the parents for birth of child with disability. In contrast, in Korea, wrongful birth actions have been brought by parents alleging that the physician’s negligence of their child caused the injury in 1990s in many lower court and since that time these have been big issues legally and socially. While some lower courts have recognized in this new type cause of action, others have rejected it based on the difficulty in determining damages. On the other hand the Supreme Court of Korea has generally indicated negative attitude to the cause of wrongful birth action. However, Korean Supreme Court, for the first time as the highest Court, had decided to recover to parents of children with disabilities for the mental damages excepting for property damages in 2002. After this 2002 Supreme Court decision because there are only one judgment in Seoul Western District Court it can not be said that many wrongful birth actions will be brought sooner or later. But in a long-term perspective it can be said that this new type actions will be gradually increasing in Korea. It was apparent that Korean Courts still had a negative view to the cause of wrongful birth action. But because the Supreme Court’s 2002 decision agreeing to allow the parents of disabled child to recover damages for the mental anguish was said rather progressive, it may seems to be a positive outlook on this issue. Meanwhile many courts of Korea have determined whether it can allow the parents of disabled child to recover damages, basing on Article 14 of Maternal and Child Health Act, allowance standard of abortion. When the abortion of the disabled fetus only can be allowed depending on Article 14 of Maternal and Child Health Act, Courts allowed damages to the parents of children with disabilities. But this Article 14 has been designed to allow abortion because of the health of the parents and this is just standard to judge whether the maintenance of pregnancy is harmful to the health of the mother of fetus. Therefore, it is unreasonable that it should be decided to recover the damages to the parents in wrongful birth action whether or not to admit by the Article 14 of Maternal and Child Health Act. Thus, the court should change their views. So it should be decided to recover the damages to the parents in wrongful birth action because of the doctor’s negligence, the duty violation doctor’s explanation and the health of the fetus itself. In this paper, it was reviewed the Supreme Court’s 2002 decision, investigated about whether or not to admit demage recover in this type of action, and examined the compensation range.

낙태죄 헌법불합치결정에 따른 입법개선방향

손여옥 한양대학교 법학연구소 2020 법학논총 Vol.37 No.1

If we took a research on the criminal abortion of Japanese law, we could recognize the 「Eugenic Protection Act」 which is considered to be the matrix of Korean 「Mother and Child Health Act」. There remains the illegal abortion in Japanese criminal law and it has not been reviewed on the constitutional perspective, so that it may well be a consequence of low weight on the japanese legal system to find out its legislative reform through the comparative legal study on the criminal abortion. However it is necessary to review the current issues and problems of artificial abortion in Japanese legal institutions because the rules on abortion between Korean law and japanese law look very similar at a glance, but they are different in detail. Especially, the “economic reason” is stipulated as the acceptable reasons for artificial abortion in the Japanese 「Eugenic Protection Act」 which is said to have been almost copied by the Korean 「Mother and Child Health Act」, but the “economic reason” is not stipulated in Korean law. According to unconstitutional decision of the constitutional court of Republic of Korea, it was pointed out as its grounds that the abortion conflict situation by various broad social and economic reasons which make it difficult to maintain pregnancy and give birth was not included at all. Considering this point, the comparative legal study on the Japanese legal system may be used as a reference in finding out the direction of legislation in a different sense from Anglo-American or European legislation because the “social and economic reasons” is prescribed and applied in Japan. 2019년 4월 11일 낙태죄에 대한 헌법재판소의 헌법불합치 결정이 내려졌다. 헌법불합치의견은 자기낙태죄조항과 의사낙태죄조항은 그 입법목적이 태아의 생명을 보호하기 위한 것으로 적합한 것으로 보면서도 모자보건법상 자기낙태의 위법성을 조각하는 정당화사유가 매우 제한적이고 한정적이라는 점을 지적하였다. 구체적으로는 모자보건법상 낙태죄의 위법성을 조각하는 사유들에는 임신유지 및 출산을 힘들게 하는 다양하고 광범위한 사회적・경제적 사유에 의한 낙태갈등 상황이 전혀 포섭되지 않아서 여성이 임신 유지로 인한 신체적・심리적 부담, 출산과정에서 수반되는 신체적 고통・위험을 강제당하는 결과를 초래할 수 있으므로 과잉금지원칙에 반하여 여성의 자기결정권을 침해한다고 판단하였다. 그러면서 “입법자는 위 조항들의 위헌적 상태를 제거하기 위해 낙태의 형사처벌에 대한 규율을 형성함에 있어서, 결정가능기간을 어떻게 정하고 결정가능기간의 종기를 언제까지로 할 것인지, 태아의 생명보호와 임신한 여성의 자기 결정권의 실현을 최적화할 수 있는 해법을 마련하기 위해 결정가능기간 중 일정한 시기까지는 사회적・경제적 사유를 어떻게 조합할 것인지, 상담요건이나 숙려기간 등과 같은 일정한 절차적 요건을 추가할 것인지 여부 등에 관하여 입법재량을 가진”다고 하면서 단순위헌결정을 할 경우 발생할 수 있는 법적 공백을 피하기 위해 2020. 12. 31. 까지 법률을 개정하도록 하였다. 이번 헌법불합치 결정은 결정가능 기간 중에 있는 사회적・경제적 사유로 인한 낙태갈등상황을 언급하면서 그러한 상황에 대하여 최소한이나마 입법재량의 기초로 삼을 것을 요구하며 구체적 형성은 입법의 재량영역으로 할당하고 있다. 이 글에서는 특히 논란이 되고 있는 ‘사회적・경제적 사유’를 인공임신중절의 허용사유로 보아야 할 것인지에 관하여 검토하고 있다. 결론을 말하자면 사회적 경제적 사유의 도입은 추상적 성격에 비추어 보아 적절하지 않다고 여겨진다. 실제로 ‘경제적 사유’를 인공임신중절의 적응사유로 규정하고 있는 일본의 「모체보호법」 제14조의 운용실태를 통해 이와 같은 문제점을 확인할 수 있었다.

동성혼 합법화 3법안의 문제점

강봉석 한국교회법학회 2023 교회와 법 Vol.10 No.1

If the three bills on Legalization of Same-sex marriage, which recognizes various types of families and grants legal rights to sexual minorities, will reduce the marriage rate, increase the number of free cohabitation or living partnerships, and increase the proportion of children born out of wedlock. In addition, since it is not known when life partnerships or same-sex couples will be resolved, psychological instability of their children may increase, accelerating the dissolution of traditional families, and deepening social instability.* Professor, College of Law, Hongik University In addition, although it is argued that the introduction of the three bills on legalization of the same sex marriage will increase the fertility rate, it would be only a vain expectation to increase through living partners or same-sex couples in the current social reality of reluctance to give birth even under the existing marriage system. Article 36 (1) of the Korean Constitution stipulates that marriage should be established based on "equality of both genders," that is, "equality of men and women," so marriage should be understood as a mental and physical combination of one man and one woman, and thus same-sex marriage cannot be recognized under our Constitution. Therefore, the three bills on the legalization of same-sex marriage is a bill that fundamentally seeks to change the basis of the family system composed of marriage and blood ties, and can be said to be an attempt to amend the Constitution in the form of a law. In conclusion, the three bills on legalization of same-sex marriage, which aims to establish a living partnership between the same sex, recognize same-sex marriage, and guarantee the birth of children of same-sex couples, is an unconstitutional law.

낙태와 중절: 입법부작위가 남긴 문제

이경렬 ( Kyung-lyul Lee ) 한국형사정책학회 2021 刑事政策 Vol.33 No.1

의사의 낙태시술과 관련하여 최근에 헌법재판소는 형법 제269조제1항 자기낙태죄 및 제270조제1항 중 ‘의사’낙태죄 부분에 대하여 [헌법불합치]결정을 하였다. 이 헌법재판소 2017헌바127 결정이후에 문제의 대법원판결이 있었다. 대법원은 임신 34주된 여성의 낙태시술 요청을 받고서 제왕절개의 방식으로 낙태한 후 살아있는 신생아를 익사시킨 산부인과 의사의 업무상촉탁낙태 피고사건을 무죄로 판단한 것이다. 하지만 위의 헌법재판소 결정에 근거하여 자기낙태가 비범죄화되고 처벌되지 않는다고 낙태행위가 전면 허용되고 권장되는 것이 아니다. 국가적 형법규제에서 성숙한 시민의 자율규제·자기통제로 이행된 것으로 이해되어야 한다. 또 헌법재판소의 결정대로 2021년 1월 1일부터 임신한 여성의 ‘자기낙태죄’ 조항이 무효라는 것이며, 의사낙태죄가 완전히 비범죄화된 것도 아니라고 본다. 헌법재판소 2017헌바127 결정으로 인하여 태아의 생명보호라는 형법적 원칙이 다소 느슨해지기는 하였으나 대법원의 무죄판결에서처럼 태아의 생명보호 원칙이 폐기되거나 자기낙태의 자유가 전면 허용되는 것으로 오도되지 말아야 한다. 이는 헌법재판소 2017헌바127 결정의 취지에 위배될 뿐 아니라 태아의 생명보호에 필요한 최소한의 정도를 넘어선 임신한 여성의 자기결정권을 과잉되게 보호하는 것으로 읽혀지기 때문이다. 대법원은 그간 국회의 형사입법에 대해서는 형법 제1조제2항 ‘법률의 변경’의미를 행위자에 불리하게 적용하는 동기설의 입장에서(즉, 법률이념에 변화에 따른 법률의 변경으로) 축소 해석함으로써 입법기능을 침습하여 왔다. 이제는 헌법재판소 2017헌바127 헌법불합치결정의 취지를 부당하게 확장함으로써(즉, 헌법재판소의 불가피한 이유에서 인정하는 헌법불합치결정의 취지를 도외시하고서), 국가에 의한 태아의 생명보호 의무가 경시되고 임신한 여성의 자기낙태가 전면 무죄라고 암시하듯이 선고하고 있다. 이러한 태도는 사법에 의한 입법의 왜곡현상으로 귀결되어 권력분립 원칙에 위반될 뿐 아니라 다른 국가기관의 권한과 위신을 손상시키고, 종국에는 일반국민의 법적 권리가 침해되는 경우도 발생할 수 있기 때문에 지양되어야 할 사법작용의 하나라고 본다. Regarding the doctor's practice of abortion procedure, the Constitutional Court recently decided [constitutional nonconformity] on the crime of self-abortion in Article 269 (1) of the Penal Code and the crime of ‘doctor’ abortion in Article 270 (1). Following the decision of the 2017 Constitution 127 of the Constitutional Court, there was a Supreme Court decision left in question. The Supreme Court presumed innocence to an obstetrician whom, with a request for an abortion from a 34-week-old woman, drowned a living newborn baby after having an abortion by means of a cesarean section. However, based on the decision of the Constitutional Court above, the fact that self-abortion is neither decriminalized nor punished does not mean that it is not entirely permitted and recommended. It should be understood as the transition from national criminal law regulation to self-regulation and self-control by mature citizens. In addition, as determined by the Constitutional Court, the provisions of ‘self abortion’ for pregnant women from January 1, 2021 are invalid, and it is not considered that the crime of pseudo abortion has been completely decriminalized. Although the criminal law principle of protecting the life of the fetus was somewhat loosened by the decision of the Constitutional Court's 2017 Constitutional Court 127, it should not be misunderstood as the principle of protecting the life of the fetus was abolished or the freedom of self-abortion was entirely permitted. This is because not only it is contrary to the purpose of the 2017 Constitutional Court 127 decision, but also it is read as excessive protection of the right to self-determination of pregnant women beyond the minimum level necessary for the protection of the fetus’s life. For the criminal legislation of the National Assembly so far, the Supreme Court legislated by reducing the meaning of “change of the law” in Article 1 (2) of the Criminal Act from the perspective of applying the meaning of “change of the law” to the actors (i.e., change of the law according to the change in legal ideology). Now, by unreasonably expanding the purpose of the Constitutional Court 2017 Constitution 127 Constitutional Nonconformity Decision (i.e., neglecting the purpose of the constitutional nonconformity decision recognized by the Constitutional Court for inevitable reasons), it can be misled and implied that the duty of the state to protect the life of the unborn child is can be neglected. This attitude should be avoided because it can lead to distortion of legislation by judicial law, violates the principle of separation of powers, damages the authority and prestige of other state agencies, and eventually infringes on the legal rights of the general public. This kind of judicial functions should be avoided.