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.

원치 않은 아이 소송의 개념정의와 유형화에 대한 새로운 시도

이은영(Eun Young Lee) 중앙법학회 2009 中央法學 Vol.11 No.2

The possibility of birth-related torts by medical doctors or health care providers has been increased with the medical malpractices of contraception, sterilization, TOP(termination of pregnancy) and ART(Assisted Reproductive Technologies). Among birth-related torts, in the case of that an unwanted child is being pregnant or is born caused by medical malpractice, parents or children bring lawsuits against medical doctors or health care providers for damages. These actions are called as claims for damages resulting from unwanted children in general. These actions for damages resulting from unwanted children can be divided into wrongful pregnancy, wrongful birth and wrongful life. Traditionally the wrongful pregnancy action means an action brought against a doctor or hospital that pregnant women was delivered of health child caused by medical malpractice in order for a patent, while the wrongful birth action is and action for damages resulting from the birth of an abnormality child caused by medical malpractice. The wrongful life action, on the other hand, is brought by the very child against a doctor who caused unwanted birth to claim for damages resulting from by his or her own birth. But, the traditional definition of these actions went wrong. This article, therefore, attempts a new definition and classification. According to the new definition the wrongful pregnancy action can be brought against a doctor or hospital to caused medical malpractice in order for a parent to seek the damages for the pregnancy itself, while the wrongful birth action is an action for damages resulting from the birth of an unwanted child caused by medical malpractice, regardless of child`s abnormality. The wrongful life action, on the other hand, is brought by the very child against a doctor who caused unwanted birth to claim for damages resulting from by his or her own birth. In addition, actions for damages resulting from an unwanted child can be divided into actions resulting from wanted/unwanted pregnancy, TOP, birth in accordance with the wish of parents, and actions by healthy/unhealthy child and/or parents in accordance with the condition of their health.

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.

의사의 과실에 의한 임신⋅출산⋅출생에 따른 손해배상책임 - 우리나라 판례에 대한 종합적 평석을 겸하여 -

이은영 한국민사법학회 2009 民事法學 Vol.46 No.-

Among birth-related torts, in the case of that an unwanted child is being pregnant or is born caused by medical malpractice, parents or children bring lawsuits against medical doctors or health care providers for damages. These actions are called as claims for damages resulting from unwanted children in general. These actions for damages resulting from unwanted children can be divided into wrongful pregnancy, wrongful birth and wrongful life. Since the actions for damages resulting from an unwanted child has been discussed in practice at first the end of the 1970's in Korea, the courts were sentenced about ten cases for damages resulting from wrongful conception, wrongful birth and wrongful life until in the concrete. As the results of these cases, most of judgments not allow the medical malpractice or they only allow the pretium doloris(Schmerzengeld) damages resulting from breach of informed consent and financial loss including the medical expenses and other necessary expenditures during the pregnancy which is permitted by 「The Mother and Child Health Law」. On the other hand, it seems negative for financial loss including the child-rearing, education costs and loss of expected income. Above all, the damages for child-rearing costs is on the contrary to the legal sentiments of the public or the public policy and customs of the community. In addition, it seems to be recognized as undervaluing human dignity because the actions regard children as objects of assessable property or damages. It is, however, an erroneous conclusion which is derived from the ignorance of distinction between the new source of damage and the damage itself which can be taken place with the development of medicine and medical technology. The damage resulting from an unwanted child is not different from other medical malpractice-oriented damage. Likewise, the legal principle of damages for an unwanted child is not greatly different from other general principles of damages as well. The amount of damages calculated by each claims is finally accounted on the basis of the application of fault offset rule, benefits rule, and of liability limitation rule which has been approved by courts in Korea. If the amount of damages including child-rearing costs is exceeds the doctor's fault, it can be reduced by the principle of damages adjustment in the light of fair and just sharing of losses. This solution corresponds with the idea of corrective justice on which law of damages is based.

“遺外子”의 國籍閒題를 論함

嚴海玉(YAN, Hai Yu) 유럽헌법학회 2017 유럽헌법연구 Vol.24 No.-

한국국적법 제2조 제1항 제1호의 부칙조항은 출생 시 혹은 출생 후 모를 잃은 자를 구제하기 위한 특례규정이고 제 2호는 출생하기 전에 이미 부를 잃은 遺順子의 선천적인 국적에 대한 규정이다. 한국국적법에는 부를 외국국민으로 하고 출생하기 전에 이미 한국국민이었던 모를 잃은 자의 선천적 국적취득에 관한 규정은 없다고 해도 과언이 아니다. 국어사전에서는 “자신이 출생하기 전에 이미 부를 잃은 자”를 遺順子라 해석하고 있으나 아직까지 출생하기 전에 이미 모를 잃은 자에 대한 해석은 없다. 인류의 역사를 돌이켜 볼 때 임산부는 애를 낳으면서, 혹은 애를 낳은 후에 죽을 수는 있어도 애를 낳기 전에 죽은 전례는 없다고 하나 오늘의 인류과학은 자신이 출생하기 전에 이미 모를 잃은 자를 출산시키고 있다. 본문에서는 “遺體子”의 어감에 맞먹는 단어로서 출생하기 전에 이미 모를 잃은 자를 “遺外子”라 칭한다. 한국국적법에서 보자면 “遺外子”는 제2조 제1항 제1호의 부칙조항에서 규정한 특례대상 및 범주에 속할 수 없어 제1호에서 배제되고, 遺體子에 대한 규정이 명확히 유보되고 있는 제2호에서도 배척된다. 왜냐하면 “遺外子”는 父가 외국국민이라는 이유에서 한국헌법으로부터 국적에 관한 사항을 위임받은 한국국적법에서 제외되고 있다. 부모양계주의를 선천적 국적취득의 원칙으로 한 한국국적법은 한국국적을 소유한 자의 생사와 배우자의 국적을 따지지 말고 그 子에게 한국국적을 부여함이 마땅하다고 생각하면서 선진적인 평가를 받고 있는 한국국적법에서 볼 때 “遺外子”의 선천적국적문제로 부계혈통주의에 殘滓를 남긴 제2조 제1항 제1호의 부칙조항과 제2호는 사족적인 규정이 아니냐 하는 소견이다. Article 2 Term 1 No. 1 supplementary provision in South Korea s Nationality Law is the special regulation legislated for the child whose mother died before or after his birth. No. 2 supplementary provision is specially le gislated for the child whose father died before his birth. Unfortunately, no provision has been legislated for the child whose father is foreigner and mother is Korean but dead. The child whose father died before his birth is called as posthumous child, but so far, there is not a definition of the child whose mother died before his birth. Looking back on the human history, there is no precedent that pregnant woman died before the child s birth. However, modern medical science makes the possible occurrence of this case. In this thesis, considering language sense comparing to posthumous child, The child whose mother died before his birth is named as ;“遺外子”. According to Article 2 Term 1 No. 1 supplementary provision in South Korea s Nationality Law, the case of the child whose mother died before his birth does not apply to this special regulation. It is also excluded by No. 2 supplementary provision. In this case, the child whose mother died before his birth does not gain the Korean nationality because his father is foreigner. South Korea s Nationality Law adopted parents jus sanguinis principle, so nationality should be conferred to all Korean nationals children without considering Korean national s life or death or his spouse s nationality. From this thesis s point of view, South Korea s Nationality Law has been highly regarded, but Article 2 Term 1 No. 1 and 2 supplementary provisions are superfluous because these provisions reflect the echoes of patrilineal descent principle in the case of the child whose mother died before his birth.

"遺外子”의 國籍問題를 論함

嚴海玉 유럽헌법학회 2017 유럽헌법연구 Vol.24 No.-

한국국적법 제2조 제1항 제1호의 부칙조항은 출생 시 혹은 출생 후 모를 잃은 자를 구제하기 위한 특례규정이고 제2호는 출생하기 전에 이미 부를 잃은 遺腹子의 선천적인 국적에 대한 규정이다. 한국국적법에는 부를 외국국민으로 하고 출생하기 전에 이미 한국국민이었던 모를 잃은 자의 선천적 국적취득에 관한 규정은 없다고 해도 과언이 아니다. 국어사전에서는 “자신이 출생하기 전에 이미 부를 잃은 자”를 遺腹子라 해석하고 있으나 아직까지 출생하기 전에 이미 모를 잃은 자에 대한 해석은 없다. 인류의 역사를 돌이켜 볼 때 임산부는 애를 낳으면서, 혹은 애를 낳은 후에 죽을 수는 있어도 애를 낳기 전에 죽은 전례는 없다고 하나 오늘의 인류과학은 자신이 출생하기 전에 이미 모를 잃은 자를 출산시키고 있다. 본 문에서는 遺腹子의 어감에 맞먹는 단어로서 출생하기 전에 이미 모를 잃은 자를 “遺外子”라 칭한다. 한국국적법에서 보자면 “遺外子”는 제2조 제1항 제1호의 부칙조항에서 규정한 특례대상 및 범주에 속할 수 없어 제1호에서 배제되고, 遺腹子에 대한 규정이 명확히 유보되고 있는 제2호에서도 배척된다. 왜냐하면 “遺外子”는 父가 외국국민이라는 이유에서 한국헌법으로부터 국적에 관한 사항을 위임받은 한국국적법에서 제외되고 있다. 부모양계주의를 선천적 국적취득의 원칙으로 한 한국국적법은 한국국적을 소유한 자의 생사와 배우자의 국적을 따지지 말고 그 子에게 한국국적을 부여함이 마땅하다고 생각하면서 선진적인 평가를 받고 있는 한국국적법에서 볼 때 “遺外子”의 선천적국적문제로 부계혈통주의에 殘滓를 남긴 제2조 제1항 제1호의 부칙조항과 제2호는 사족적인 규정이 아니냐 하는 소견이다. Article 2 Term 1 No. 1 supplementary provision in South Korea’s Nationality Law is the special regulation legislated for the child whose mother died before or after his birth. No. 2 supplementary provision is specially legislated for the child whose father died before his birth. Unfortunately, no provision has been legislated for the child whose father is foreigner and mother is Korean but dead. The child whose father died before his birth is called as posthumous child, but so far, there is not a definition of the child whose mother died before his birth. Looking back on the human history, there is no precedent that pregnant woman died before the child’s birth. However, modern medical science makes the possible occurrence of this case. In this thesis, considering language sense comparing to posthumous child, The child whose mother died before his birth is named as “遺外子”. According to Article 2 Term 1 No. 1 supplementary provision in South Korea’s Nationality Law, the case of the child whose mother died before his birth does not apply to this special regulation. It is also excluded by No. 2 supplementary provision. In this case, the child whose mother died before his birth does not gain the Korean nationality because his father is foreigner. South Korea’s Nationality Law adopted parents jus sanguinis principle, so nationality should be conferred to all Korean nationals’ children without considering Korean national’s life or death or his spouse’s nationality. From this thesis’s point of view, South Korea’s Nationality Law has been highly regarded, but Article 2 Term 1 No. 1 and 2 supplementary provisions are superfluous because these provisions reflect the echoes of patrilineal descent principle in the case of the child whose mother died before his birth.

미국에서의 원치 않는 아이 소송의 역사와 법적 쟁점 - 기존의 논의에 대한 비판적 검토를 겸하여 -

이은영 한국외국어대학교 법학연구소 2009 외법논집 Vol.33 No.3

The actions for damages resulting from an unwanted child has been discussed in practice first in Korea. And then the academic scholars have taken the subject into account by analysing precedents in the United States. Thus, the United States' discourse on the actions for damages resulting from an unwanted child is reflected on our legal theories and precedents. The actions for damages resulting from an unwanted child, in fact, are under the jurisdiction of state and regulated by state courts in the United States. So, it is difficult to find out a unified view. But it is necessary to research the history of actions for damages resulting from an unwanted child in the United States focusing on leading cases and to put in order standpoints of state court cases from the horizontal aspect. The history of actions for damages resulting from unwanted child has started in the 1930s and developed into the direction of permitting and extending reliefs in the United States. However, the cases are not always advantage to plaintiffs. For the present, there is a lively controversy on permissibility and its extent of damages. Most of states approve medical expenses and consolation money resulting from wrongful conception and birth. However, an heated debate is going on the approval of child-rearing costs. While the child-rearing costs of a healthy child are approved by a few state courts, the additional child-rearing costs of an abnormal child are approved by a half of the states. In case of wrongful life, only a few states approve additional child-rearing costs.

원치 않은 아이의 출생과 의료과오책임

권오봉(Kwon Oh-Bong),윤석찬(Yoon Seok-Chan) 부산대학교 법학연구소 2010 법학연구 Vol.50 No.1

낙태의 폐단으로 인한 인간의 존엄성 상실이라는 사회적 자정의 분위기 속에서 낙태거부를 선언한 산부인과 의사들의 동참과 호응은 예상보다도 활발하다 평할 수 있다. 이러한 예단하에서 낙태는 이제부터는 어려워 질 것이며, 이로 인하여 사전에 피임 내지 불임시술이 압도적으로 증가하리라 전망할 수 있다. 그런데 이러한 낙태예 방적 조치에 있어 입증되어 질 수 있는 의사의 과실로 피임 내지 불임이 되지 않거나 혹은 장애아를 피하기 위하여 산전검사를 하였으나 명백한 의사의 과실로 그러한 장애가 예견되지 못해서 장애아를 출산한 경우에 있어서는 의사의 과실이 개입된 이상 의료과오가 성립한다고 보아야 하고, 이러한 유형의 의료과오는 점차 많이 발생할 것으로 예상된다. 본고는 소위 원치 않은 아이가 출산한 경우에 대하여 그 법적분쟁의 해결에 단초를 제공하고 우리 판례의 입장의 변화를 촉구하는 의미에서 그러한 책임법리를 고찰해 보았다. 비교법적 관점에서도 확인된 바와 같이 우리나라를 비롯해 외국에서는 인간의 존엄성의 언명 하에 "원치 않는 아이”라 하더라도 결코 "손해”라고는 볼 수는 없다는 것이다. 그러나 경제적 사유 등으로 피임시술 내지 불임시술을 하였고 여기에 의사의 과실이 개입되어 원치 않는 아이를 출산하여 부양의무를 부담해야 한다면 양육비 내지 교육비도 일반적인 의료과오상의 손해배상범위 안에서 파악되어야 하며 독일 판례이론인 보호목적설과 이를 인용하는 상당인과관계에 관한 기존의 우리나라 대법원 판례의 입장대로라면 상당성 있는 손해로서 위자료와 함께 배상되어져야 할 것이다. 그럼에도 불구하고 원치 않은 임신의 사안에서 우리나라 대법원 판례는 분만비용과 위자료만을 인정하고, 양육비 및 교육비 상당의 손해배상청구를 우리 헌법정신과 민법 제913조의 규정에 비추어 제3자에게 전가할 수 없다는 논거에서 부정하고 있다는 점에서 피해자 보호에 부족한 점이 지적된다. 게다가 우리나라의 실정상 과대한 사교육비의 부담이 자녀출산기피의 제일 원인인 현실적 상황에서 의사의 과실로 비롯된 잘못된 피임시술로 원치 않은 아이를 출산하면 그에 상응한 손해배상책임을 의사에게 인정하여 양육비를 부담하게 하는 것이 출산을 피하려는 계약목적이 고려된 올바른 계약책임법리의 해석이 되고 아울러 공평의 원칙에도 부합한다고 보여진다. 동일한 사안에서 독일 연방대법원(BGH)은 원치 않은 아이의 양육비와 교육비를 전적으로 손해로서 인정한 바는 우리에게 시사하는 바가 크다고 본다. 이미 의학기술의 발달로 이제는 인구의 조절이 가능하게 되었고 가족계획이라는 것도 오래전부터 일반화되고 현실화되었다. 특히 임신한 산모가 경제적 사유가 아닌 장애아를 낳을지도 모를 우려가 있어 의사와 상담을 하였고, 의사는 과실로 이러한 장애아 검사를 게을리 한 경우에 그 장애아의 원인이 합법적 낙태가 되지 않는 다운증후군이라는 사유로 설령 의사에게 과실이 없어 다운증후군이 출산 전에 밝혀지더라도 불법적 낙태가 허용되지 않기에 위자료청구조차도 인정되지 아니한다는 우리 판례의 논리는 지나치게 형식논리에 치우친 것으로 보인다. 동 판례의 논리대로라면 굳이 산모가 진료계약을 체결하면서 비용을 투자하여 태아가 다운증후군인지 여부를 검사할 필요가 없었다는 점이 간과되게 된다. It seems to be clear that medical malpractice is admitted in the case of births associated with negligent contraceptive surgery or having a congenitally abnormal child because it was not predictable as a result of a doctor’s negligence in spite of undergoing triple test or amniocentesis. The purpose of this note is to examine the legal responsibility principle in the wrongful birth and to suggest the solution of that case urging the court change the doctrine of precedent. The birth of a child cannot be regarded as a damage although it is "wrongful life". Even so, if parents have a contraceptive operation because of the economic problem, the damage for the birth of a child or maintenance and education costs should be compensated insofar as they are based on the medical negligence. Considering the Supreme court precedents referring to the reasonable reason, it is natural that the damage awarded should be those for rearing the child as well as pain and suffering. Because that is in accord with the responsibility principle of contract law and the principle of fairness. Nevertheless, The Supreme Court admitted childbirth costs and pain and suffering of an unwanted pregnancy but rejected the damage for the child's support citing the Constitution and article 931 of the civil law as a legal basis. In addition, the court did not concede even pain and suffering on the grounds that Down syndrome abortion is illegal in the case where parents asked complete medical examination in order not to have a defective child like a baby with Down syndrome and this test was conducted but such a child was born due to inadequate provision of information by a doctor's negligence. In other words, the court implied there was no infringement of rights because mother did not have an option although Down syndrome had been identified before childbirth, on account of the reason abortion would not be legally permitted. However, this attitude of the court reflects a strong involvement with formal logic and is regarded as an antinomy. Because, considering the purpose of the amniocentesis and the recent trends in abortions, pregnancy termination would be hardly rejected. Mother, by contrast, has a right to know whether the fetus is normal or abnormal through the medical examination which is legally permitted. Therefore, the mental damage caused by the matter she cannot prepare properly should be recognized. Meanwhile, Federal Court of Justice of Germany fully admits maintenance and education costs for the child irrespective of whether the child is normal or abnormal, wrongful conception or wrongful birth as long as the doctor's negligence is admitted.

원치 않은 아이의 출생과 의료과오책임

권오봉,윤석찬 부산대학교 법학연구소 2010 법학연구 Vol.51 No.1

It seems to be clear that medical malpractice is admitted in the case of births associated with negligent contraceptive surgery or having a congenitally abnormal child because it was not predictable as a result of a doctor’s negligence in spite of undergoing triple test or amniocentesis. The purpose of this note is to examine the legal responsibility principle in the wrongful birth and to suggest the solution of that case urging the court change the doctrine of precedent. The birth of a child cannot be regarded as a damage although it is "wrongful life". Even so, if parents have a contraceptive operation because of the economic problem, the damage for the birth of a child or maintenance and education costs should be compensated insofar as they are based on the medical negligence. Considering the Supreme court precedents referring to the reasonable reason, it is natural that the damage awarded should be those for rearing the child as well as pain and suffering. Because that is in accord with the responsibility principle of contract law and the principle of fairness. Nevertheless, The Supreme Court admitted childbirth costs and pain and suffering of an unwanted pregnancy but rejected the damage for the child's support citing the Constitution and article 931 of the civil law as a legal basis. In addition, the court did not concede even pain and suffering on the grounds that Down syndrome abortion is illegal in the case where parents asked complete medical examination in order not to have a defective child like a baby with Down syndrome and this test was conducted but such a child was born due to inadequate provision of information by a doctor's negligence. In other words, the court implied there was no infringement of rights because mother did not have an option although Down syndrome had been identified before childbirth, on account of the reason abortion would not be legally permitted. However, this attitude of the court reflects a strong involvement with formal logic and is regarded as an antinomy. Because, considering the purpose of the amniocentesis and the recent trends in abortions, pregnancy termination would be hardly rejected. Mother, by contrast, has a right to know whether the fetus is normal or abnormal through the medical examination which is legally permitted. Therefore, the mental damage caused by the matter she cannot prepare properly should be recognized. Meanwhile, Federal Court of Justice of Germany fully admits maintenance and education costs for the child irrespective of whether the child is normal or abnormal, wrongful conception or wrongful birth as long as the doctor's negligence is admitted.

이른바 ‘원치 않은 아이의 出生으로 인한 損害賠償’에 대한 오스트리아 最高法院의 判例

이동진 대한변호사협회 2009 人權과 正義 : 大韓辯護士協會誌 Vol.- No.392

Recently, the supreme court of Austria has decided several cases of wrongful birth, rongful life and wrongful conception. According to the ratio of the decisions, in wrongful birth cases, medical doctor would be responsible for the full maintenance to the handicapped child, whereas in wrongful conception cases, he wouldn’t at all. H. Koziol and F. Bydlinski agreed with the decisions, supporting the result by the reason as follows : a parents-child relationship is made up with not only the burden of maintenance but also the pleasure of having a child, the untearable complex of which prevents it from being considered as any kind of detriment. However, the parents-child relationship as a whole can be considered as a detriment when the child is handicapped, raising the child means an extraordinary burden to the parents. In normal situation - when a healthy child is born, the principle of liability is subordinate to the principle of the respect of the child’s personality, while it isn’t in the abnormal situation - when a handicapped child is born. In spite of all these arguments, the supreme court of Austria doesn’t make it clear whether it follows the reasoning presented above or not, why and how it differentiates both types. Though the decisions are under strict criticism, they are expected to give some intuition to the our discussion on the same problem. 오스트리아 최고법원은 최근, 이른바 ‘원치 않은 아이의 출생으로 인한 손해배상’의 문제에 관하여, 장애아 부모형에서는 장애로 인하여 추가로 드는 양육비를 포함한 양육비 전액 상당의 손해배상을 인정하면서도, 정상아형에서는 전혀 손해배상을 인정하지 아니하는 입장을 명확히 하였다. 일찍이 Koziol, Bydlinski 등이 정상아형의 경우 아이의 존재로 인한 부양의 부담과 그로 인한 기쁨 기타 친자관계 전체는 포괄적으로 불이익한 것으로 평가될 수 없으나, 장애아의 경우와 같이 그로 인하여 부모에게 특별한 부담이 지워지게 되는 경우에는 위 관계 전체가 불이익으로 평가될 수 있다거나, 통상의 경우에는 아이의 인격을 존중하여 손해 전보원칙이 후퇴하여야 하나 장애아가 태어나 특별한 부담이 지워진 경우에는 손해전보원칙이 우선해야 한다는 등 이를 뒷받침하는 논거를 제시한 바 있으나, 최고법원은 위와 같은 차별적 처리의 근거를 명확히 하지 아니하고 있어, 상당한 비판을 받고 있다. 이와 같은 오스트리아 최고법원 판례 및 이를 둘러싼 논의는 비교법적으로 매우 특이한 것으로, 같은 문제를 둘러싼 우리의 논의에도 참고가 되리라고 여겨진다.