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영어

Medical malpractice suit, a term which has not been clearly defined by the courts as a legal terminology, is a suit where the side of patients files a claim for damage compensation against medical providers based on "the argument that the medical accident was caused by those providers' wrongdoing in their medical treatment." It is the patient who must have a burden of proof in such suit no matter what the cause of action for the medical malpractice suit is unlawful act in tort law or default on the debt. Compared to the other ordinary suits, there are two difficulties in a medical malpractice suit: the one is that the underlying facts themselves are hard to be reacted; and the other is that it is very difficult to prove the existence of those facts. These difficulties in proving facts come from the nature of medical treatment itself. In particular, it can be a huge hindrance on proving the existence of medical malpractice that medical treatments are made on great discretion of medial providers and the effects of those treatment can be varied depending on the conditions of individual patients. Thus, if we apply general rule of shifting burden of proof to a medical malpractice suit, the disadvantages of difficulties in proving evidence could be borne by either the side of patient or medical providers unilaterally, which requires us to adjust such rule of burden of proof based on the realities of medical malpractice suit. Regarding these issues, there are various theories and discussions for relieving the burden of proof on the patients with respect to the negligence and causation. We can divide those theories into theories for alleviating burden of proof, theories for shifting burden of proof, theories for hindering burden of proof. Even though there are other views, the case laws of the Supreme Court of our country seem to apply all of those theories for alleviating burden of proof. However, despite of the existence of such theories, from the perspective of patients, it is hard to say that the problems in proving evidence are resolved satisfactorily. In this regard, the theories and discussions for shifting burden of proof, which are more satisfactory to the patients, are actively made in other countries including Germany. Shifting burden of proof can be applied to the instances where intentional malpractice, negligence and causation must be proven. It is burden of proof regarding causation about which, in Germany, a lot of discussions on shifting burden of proof are made in terms of damage compensation claims of medical malpractice suit based on the causes of action such as unlawful act in tort law or default on the debt. As for the burden of proof regarding negligence, based on the reason that the fundamental principle of equity may be seriously violated, the discussions on shifting burden of proof in terms of damage compensation claims based on the causes of action of unlawful act in tort law are not aggressively made In contrast, as for damage compensation claims based on the causes of action of default on the debt, such discussions are aggressively made. Thus, in this paper, I examine the 'theories for shifting the burden of proof regarding causation' which most of case laws and theories in Germ any recognize whatsoever the cause of action for the medical malpractic e suit is unlawful act in tort law or default on the debt. In addition, I ex amine whether there is room for the application of those theories to the cases in our country where no case law of the Supreme Court has dealt with the issue of shifting the burden of proof in medical malpractice suits and the studies on such issue have not been conducted satisfactory. In our country, we have not found any case laws of the Supreme Cou rt handling with the issue of shifting the burden of proof in medical malp ractice suits so far. However, the legislature has continue to assert that a special statute must be enacted for shifting the burden of proof in med ical malpractice suits so that the person in fault or negligence shall be r esponsible for the burden of proof and damage compensation in either co ntract cases of civil law or tort law. People's coalitions such as the Citiz ens' Alliance of Korea still continue their assertion that the burden of pr oof in medical malpractice suits shall be shifted. In our country, of cours e, there may be necessary to adopt the theories for shifting the burden of proof in medical malpractice suits. However, in my view, it would be premature to radically recognize and adopt those theories.