의료과오소송에서의 증명책임경감론 - 일응의 추정이론을 중심으로 -


Mitigation of burden of proof on malpractice suit - Theories based on presupposition and coincidence -


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The trial, generally, makes an application of law for concrete matters in dispute and must confirm the facts applied to requisites of law from the premises. Ultimately, as the trial must be done in the way of fact finding and application to law, it is the legal judgement to draw a conclusion with making the confirmed fact a minor premise and the law a major premise. But, due to the limitation of cognoscitive power of human, there is non liquet without confidence on the truth about factum probandum after judges examine evidences. In this case that it's inapplicable to regulations, the effect of law applied to regulations won't be able to be judged. In case that existence of the certain fact is unproven at lawsuit due to unidentified truth, it's called burden of proof, Beweislast, to indicate the risk of one party to a suit who can't help taking disadvantageous law judgement for the reason. There are many theories and controversies about whether it's reasonable for anyone who will have to burden a responsibility for proof ;nevertheless, in relation to distribution of taking a responsibility for proof, it can be called a traditionally basic principle in the longest history that the person who wants to take the effect of law will take the responsibility for proof in the general cases. But, this basic principle has so far changed in various ways since the theory on responsibility for proof started to be academically established. And the principle is now asked to change. Above all, this phenomenon became more noticeable in the modern lawsuit such as lawsuit for public nuisance, malpractice suit, productliability suit, etc. As it's extremely hard for a victim to prove the casual relationship between occurrence and cause of damage by the victim's own effort, it's actually rejected to relieve the victim if the victim should be asked to prove the whole process of casual relationship. The case of a claim for damages(malpractice suit) about medical malpractice to be dealt with this article is confronted with two difficulties different with a general claim for damages. One is hard to reenact an objective fact, itself, caused with medical malpractice, and the other is hard to prove an existence of the objective fact. Therefore, the manner to burden unilaterally a patient with a responsibility for proof can't conform with ideals of a claim for damages system, that is, the guiding principle based on a fair and proper burden for damages. In the end, to realize the adversary system(Prinzip der Parteigleichheit)between the litigant, doctor, and the patient in the medical malpractice suit, it's asked to mitigate or change the burden of proof so that the patient can claim easily for damages by relaxing the burden of the patient within the limit of making doctors be wrongfully unharmed. There are various arguments about how much a responsibility for proof of the patient, plaintiff, should be relaxed in the medical malpractice suit. The arguments can be largely classified to mitigation, conversion and interference of a responsibility for proof. In the medical malpractice suit, there are probability, de facto presumption and presupposition and coincidence to be mainly discussed as relaxing a responsibility for proof of the casual relationship. In this article, theories based on presupposition and coincidence in the malpractice suit would be reviewed by focusing on theories and precedents.


Ⅰ. 서론
 Ⅱ. 일응의 추정이론의 개념
 Ⅲ. 일응의 추정이론의 본질
 Ⅳ. 판례에 적용된 일응의 추정이론
 Ⅴ. 결론


  • 이정환 Lee, Jeong-Hwan. 법학박사, (전)원광대학교 법학과 · 벽성대학 부동산행정과 강사.


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