의료과오소송 입증책임론의 전개와 발전

다국어 초록 (Multilingual Abstract)

The medical practice does not always get a satisfatory result since the disease progress of patients are depended on patients' physical constitution and the doctors cannot control the outcomes about patients' physiological and biological reaction after the treatment. Moreover, the medical practice may bring wrong result fatalistically because of the unpredictablility of life. To demand for compensation of the damage to the doctors about these wrong result, the patient side holds the burden of proof that is between medical practice and demage, and there is damage from doctor's malpractice according to the accepted theory about the fundamental principle of distribution of the burden of proof. This falls not only under the liability of Tort Law, but also liability of Contract Law. However, the patient may be in difficult situation to prove the malpractice of doctors since he or she cannot recognize the facts because he or she was in unconscious while the medical practice was conducted, or they cannot judge precisely even though they recognize the facts. Nevertheless, the lawsuits against medical malpractice are the field that never achieves the equality of arms since the most of the evidence belong to the doctor's side. Hence, to maintain the principle of the equality of arms under the constitution, the theory leads to alleviate the burden of proof that patients hold. However, the doctors cannot be asked for the burden of proof that they conduct medical practice without errors. Because the doctors may experience difficulty to prove their innocence as the patients because of the unique characteristic that medical practices have. Therefore, the methods of the alleviation of the patient's burden of proof should have the equality of arms and the equal opportunity between the patients and the doctors with the evaluation of the justifiable interest from both the patients and the doctors. As the methods of the alleviation of the burden of proof, the alleviation of the demands and the degree of the burden of proof or resolutely the conversion of the burden may be considered. However, Recognizing the exception from general principle with converting the burden of proof is not proper in principle because the doctors may experience difficulty of the proof as the patients may have. If the difficulty of proof can be resolved by alleviating of the demands and the degree of the burden of proof, it is more desirable resolution rather than converting the burden of proof.

목차 (Table of Contents)

• I. 서론
• II. 의료과오소송의 특징
• 1. 의료과오소송의 특수성
• 2. 의료과오소송과 입증의 곤란
• III. 의료과오소송에 있어서 입증책임
• 1. 입증책임의 일반원칙과 입증책임 완화의 필요성
• 2. 입증책임완화이론
• 3. 입증방해론
• IV. 결론
• 참고문헌
• ABSTRACT

참고문헌 (Reference)

1 김욱곤, "현대민법학의 제문제" 박영사 1981

2 김형배, "채권총론" 박영사 1999

3 강봉수, "의료과오소송에 있어서의 입증경감" 29 (29): 1980

4 김용담, "민사소송에 있어서의 입증방해" 1984

5 곽윤직, "민법총칙" 박영사 1999