의료소송에 있어서의 입증책임과 판례의 경향 = Burden of Proof in Malpractice Suits and the Trend of Judicial Precedent

다국어 초록 (Multilingual Abstract)

It is general rule that professionals like doctor must act with the level of skill and learning commonly possessed by the members of. the profession in good standing. The doctor is liable for malpractice only if he acted without the requisite minim urn skill and competence. However a plaintiffs tort lawyer often face the difficulty in proving his case because of the fact that the plaintiff does not have any knowledge of or access to the facts about the defendant's conduct. So it is necessary to make the plaintiffs task significantly easier to prove the negligence or the lack of minimum skill and competence of doctor in malpractice suits. In anglo-american legal system, the doctrine of res ipsa loquitur(which means in English "the thing speaks for itself') allows the plaintiff to point to the fact of the accident, and to create an inference that, even without a precise showing of how the defendant behaved, the defendant was probably negligent. In Germany, the theory of appearance proof(Anscheinsbeweis) plays the similar role of res ipsa loquitur.
The decision of Supreme Court also makes the plaintiffs task easier to prove the negligence or the lack of minimum skill and competence of doctor. The decision of 1995. 2. 10. (93 q.52402) clarified the way to relieve the burden of proof of plaintiff. The negligence of doctor is inferred when the plaintiff shows that the conduct of doctor is negligent in the view of common sense of ordinary people, and the causation of negligence of doctor and the damages is also inferred when plaintiff proves that there could be no other cause of damages except the negligence of doctor. Doctor should prove the other cause of the damages to be free from the liability of malpractice.
Although it is necessary to relieve the burden of proof of plaintiff in medical malpractice, the word of "common sense of ordinary people" should be used carefully. In most of medical malpractice cases, the negligence of doctor can be hardly proved through the common sense of ordinary people. So the negligence of doctor should be proved not by the common sense of ordinary people but by the circumstantial evidence with the help of special trial commissioner when it is inappropriate to make decision through the common sense.

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 의료과오에 있어서의 입증책임의 분배
• Ⅲ. 의료과오에 있어서의 입증책임의 완화
• Ⅳ. 대법원 판례의 경향
• Ⅴ. 결론
• 참고문헌
• 〈ABSTRACT〉