국문요약 ················································································1
❘제1장❘서 론 (최민영) ······················································5
제1절 연구의 목적 ························································································7
제2절 연구의 범위와 방법············································································8
❘제2장❘의료행위 및 의료사고의 개념과 법적 책임의 관계
(최민영) ·······························································11
제1절 의료행위 및 의료사고의 개념과 법적 성격······································13
1. 의료행위 및 의료사고의 개념과 특징························································13
가. 의료행위의 개념·····························································································13
나. 의료사고 및 의료분쟁의 개념·······································································15
다. 의료행위와 의료사고의 특징·········································································16
2. 의료행위 및 의료사고의 형법적 개념과 성격···········································18
가. 의료행위의 형법적 개념················································································18
나. 의료행위 및 의료사고의 형법적 성격··························································18
제2절 의료사고 및 의료분쟁에 대한 형사 책임과 민사 책임의 관계 ········20
1. 의료사고 및 의료분쟁의 형사상 쟁점과 민사상 쟁점·······························20
가. 민사상 쟁점····································································································20
나. 형사상 쟁점····································································································21
2. 의료사고 및 의료분쟁의 형사 책임과 민사 책임의 비교·························21
가. 규범목적의 비교·····························································································21
나. 인과관계와 객관적 귀속의 문제···································································22
다. 책임귀속의 구조·····························································································22
라. 입증책임··········································································································23
마. 소송의 절차와 성격·······················································································23
바. 민사판결과 형사판결의 비교·········································································23
3. 의료사고에 대한 형사처벌의 의의와 한계·················································27
가. 의료사고와 형사책임의 한계·········································································27
나. 형사책임의 독자적 인정 필요성···································································31
❘제3장❘의료사고에 대한 법적 제재와 의료분쟁조정의
현황과 법제 (최민영) ··········································33
제1절 의료사고 및 분쟁의 현행 해결방안 ··················································35
1. 소송···············································································································35
2. 소송 이외의 방법·························································································36
가. 화해·················································································································36
나. 중재·················································································································37
다. 조정·················································································································38
라. 소결·················································································································42
제2절 의료분쟁조정법의 제정경위와 내용··················································42
1. 제정배경과 과정···························································································42
2. 주요내용········································································································43
가. 의료분쟁의 조정·····························································································43
나. 불가항력 의료사고 보상제도·········································································51
다. 손해배상금 대불제도·····················································································51
라. 형사처벌 특례제도·························································································51
제3절 의료분쟁조정법 이전･이후 의료분쟁조정 및 소송 현황···················52
1. 국내 주요기관 접수현황··············································································52
2. 민사소송 현황·······························································································52
3. 형사소송 현황·······························································································54
4. 한국소비자원의 현황····················································································54
5. 한국의료분쟁조정중재원의 현황··································································57
6. 소결···············································································································59
❘ 4 ❘ 분쟁조정과 형사책임의 비교법적
검토(이석배) ······················································61
제1절 일본··································································································63
1. 일본의 ADR(Alternative Dispute Resolution 재판외 분쟁해결) ········63
가. 일본의 재판외 분쟁해결절차의 이용촉진에 관한 법률(ADR법)의
제정과정 ··········································································································63
나. ADR법의 내용·······························································································64
다. 소송과 ADR의 관계: 두 가지 모델의 ADR ···············································67
2. ADR법의 시행이후 운용에 대한 평가·······················································70
3. 일본의 의료 ADR의 발전과 운용상황·······················································72
가. 일본의 의료 ADR: 의료분쟁 소송에서 탈소송화(脫訴訟化)로의 움직임···72
나. 의료 ADR의 운용상황···················································································74
4. 의료기관측에서 바라본 의료 ADR ·····························································85
5. 의료 ADR의 발전을 위한 과제··································································85
가. 의료 ADR에 대한 인지도의 확보································································85
나. 인재의 확충과 재원의 확보··········································································86
다. ADR에서 전문가(의사)의 참여모색······························································87
라. 비용부담의 문제해결 ····················································································88
6. 의료법개정과 의료분쟁상황에서 의료 ADR 활용의 향후전망·················89
가. 의료법개정의 경위와 신설규정·····································································89
나. 의료법 개정에 의한 의료분쟁의 처리··························································91
다. 소결: 개정의료법의 한계···············································································92
제2절 독일··································································································93
1. 독일의 ADR 제도························································································93
가. ADR 운동의 세 가지 물결···········································································93
나. 유럽에 나타난 ADR의 경향·········································································94
다. 독일의 ADR 상황··························································································95
라. 종합·················································································································99
2. 의료분쟁해결제도(의료 ADR) ······································································99
가. 의료분쟁 현황································································································99
나. 의료 중재기관······························································································100
다. 감정위원회와 의료중재원의 공통원칙························································104
라. 대표적 의료중재기관···················································································106
마. 감정위원회와 의료중재원의 남은 문제······················································117
제3절 영국································································································120
1. ADR 제도···································································································120
가. ADR 도입배경·····························································································120
나. 민사 법원조정제도·······················································································120
다. 제도내용·······································································································121
라. 평가···············································································································121
2. 의료분쟁해결제도·······················································································122
가. 의료분쟁해결 제도 ·····················································································123
나. 의료인 중심의 의료분쟁조정 관련기구······················································134
제4절 요약 및 평가··················································································137
1. 일본의 의료 ADR ······················································································137
가. 요약···············································································································137
나. 평가···············································································································148
2. 독일의 의료 ADR ······················································································140
가. 요약···············································································································140
나. 평가···············································································································142
다. 기타···············································································································143
3. 영국의 의료 ADR ······················································································144
가. 요약···············································································································144
나. 평가···············································································································146
4. 일본, 독일, 영국의 의료 ADR이 우리에게 시사하는 점·······················147
가. 공통적인 의료 ADR의 목표·······································································147
나. 공통적인 문제점···························································································148
다. 의료 ADR의 최근 경향··············································································148
라. 우리 의료분쟁 조정･중재제도에 시사하는 점···········································149
❘ 5 ❘ 대한 조정과 형사법의 임무
(최민영) ····························································153
제1절 회복적 사법과 의료분쟁조정 ··························································155
1. 회복적 사법의 이념···················································································155
2. 회복적 사법과 형사사법의 관계·······························································157
3. 의료분쟁조정의 착안점으로서 회복적 사법? ···········································159
가. 의료분쟁조정과 회복적 사법의 목적 ························································159
나. 조정결정의 주체···························································································159
다. 조정위원과 감정위원에 의한 진술의 이용가능성······································160
라. 의료사고 피해의 도식적인 산정·································································162
4. 소결·············································································································163
제2절 의료분쟁조정과 전통적인 사법 시스템의 임무······························164
1. 의료분쟁과 사법시스템을 통한 문제해결의 한계 ··································164
2. 의료분쟁조정의 절차법으로서 의료분쟁조정법········································164
3. 의료분쟁조정과 사법시스템의 관계··························································165
가. 상호보완의 필요성·······················································································165
나. 임의적 조정전치주의와 구속력의 유무······················································165
다. 조정 이후 소송에서 증거사용의 문제························································166
라. 시효중단·······································································································166
마. 무과실보상제도와 형사처벌특례제도··························································166
제3절 의료분쟁조정과 형사사법의 관계···················································167
1. 의료사고에 대한 형사책임 귀속의 기존 논의·········································167
가. 의료행위에서 의사의 주의의무···································································167
나. 의료사고에서 과실인정의 기준과 제한원리···············································168
다. 주의의무위반과 형사책임의 귀속·······························································169
2. 의료분쟁조정제도의 도입과 형사책임의 변화: 형사처벌특례제도·········170
가. 형법상 과실범 규정과의 비교 ···································································170
나. 교통사고처리특례법상 형사처벌특례제도와의 비교··································171
다. 형사처벌특례제도의 실효성 여부·······························································172
라. 형사처벌특례제도 도입에 따른 형사책임의 변화······································174
❘ 6 ❘ : 대한 분쟁조정과 형사제재의
합리적인 방안(최민영) ····································177
제1절 의료분쟁에 대한 조정과 기존 형사제재의 개선방안 ······················179
1. 임의적 조정전치주의··················································································179
2. 의료분쟁조정의 자율성 확보·····································································180
제2절 의료분쟁조정법의 쟁점검토 및 개선방안·······································180
1. 조정중재원의 조정제도··············································································180
가. 감정···············································································································180
나. 조정···············································································································182
2. 손해배상금 대불제도··················································································185
가. 법적 성격·····································································································185
나. 재원부담 주체 및 방법···············································································186
다. 대불의 대상··································································································187
라. 대불의 절차··································································································187
마. 기타: 무자력 대불금의 경우·······································································187
3. 불가항력 의료사고 보상제도·····································································188
가. “불가항력”의 개념·······················································································188
나. 보상의 법적 성격·························································································189
다. 헌법적 문제점······························································································189
라. 보상사업의 재원마련 방안··········································································190
4. 형사처벌특례제도·······················································································190
제3절 조정중재원의 적절한 위상과 업무분담내용 제안 ···························191
1. 조정중재원의 독립성 보장········································································191
2. 한국소비자원과의 업무분담·······································································192
참고문헌 ··········································································194
Abstract ·······································································203

의사와 환자의 신뢰관계를 바탕으로 이루어지는 의료행위는 악결과가 발생하였을때, 양 당사자 간의 의료분쟁으로 발전할 수 있다. 의료인 측은 의료행위의 특수성으로인한 악결과의 불가피성을 설명하지만, 이 설명을 받아들이기 어려운 환자 측에서는의료사고를 의료분쟁으로 발전시킨다. 특히, 우리나라에서는 1989년 이래로 전 국민에 대한 건강보험이 실시되면서 진료를 받는 환자 수가 급증하고, 2000년 의료법의개정으로 환자 측에서 진료기록에 자유롭게 접근할 수 있게 되면서 의료분쟁 사건은더욱 증가하였다.1) 이에 따라 1988년 이후로 지난 23년간 의료분쟁조정의 노력은관련법 제정시도를 통해 지속되어 왔다. 그 결과, 2011년 3월 11일 ‘의료사고 피해구제 및 의료분쟁조정 등에 관한 법률’(이하, “의료분쟁조정법”)이 제정되어 2012년4월 8일부터 시행되어 왔다. 또한 의료분쟁조정법 시행 이후, 동법에 따라 의료분쟁의독립적 조정기구로서 한국의료분쟁조정중재원(이하, “조정중재원”)이 2012년 4월부터 출범하였다. 실제로, 조정중재원 출범 이후로 조정신청 접수건수와 조정 성립률은증가세를 보이고 있고, 앞으로도 조정･중재 신청건수는 지속적으로 증가할 것으로예상된다.따라서 의료분쟁조정법상의 형사법적 쟁점과 그 밖의 주요쟁점들을 검토하고, 조정중재원과 의료분쟁조정제도를 통한 실제 의료사고와 의료분쟁 해결사례들을 분석하고, 이전의 사례들과 비교분석함으로써 조정중재원과 의료분쟁조정제도 운영의 유용성 여부를 타진하고 보다 나은 운영을 위한 개선방안을 , 도출할 필요가 있다. 본 보고서는 이러한 연구의 필요성에 기초하여 다음과 같은 목적을 지닌다. 첫째, 의료사고및 의료분쟁에 대한 형사법적 책임과 민사법적 책임의 관계를 검토한다. 의료사고와의료분쟁은 대부분 형사법적 쟁점과 민사법적 쟁점이 함께 맞물리는 영역이다. 새로이 제정된 의료분쟁조정법의 각 쟁점들-무과실책임제도, 형사처벌특례조항, 손해배상금의 대불청구, 입증책임의 전환 등-만 보더라도 이를 확인할 수 있다. 이러한이유로 두 책임영역의 관계를 검토하고, 형사법적 영역의 독자적인 기능은 어디에있는지 논의한다. 둘째, 의료사고에 대한 형사처분과 의료분쟁조정의 최근경향을 분석한다. 의료사고에 대한 형사처분과 의료분쟁조정의 최근 경향을 제시된 통계자료들을 통해 간략히 스케치하고자 한다. 의료분쟁조정법 시행 전후의 통계자료들은 의료사고 및 의료분쟁의 합리적인 형사규제를 위한 정책 제시에 도움이 될 것이다. 셋째,영국, 독일, 일본 등 주요 국가들의 의료분쟁해결을 위한 다양한 조정제도들을 비교분석한다. 우리보다 앞서서 의료분쟁조정 제도를 운영하고 있는 국가들을 검토함으로서각 국가의 제도가 우리에게 던져주는 시사점들을 구체적으로 논의한다. 넷째, 의료사고 및 의료분쟁에 대한 조정제도 및 형사법의 임무와 책임귀속의 관계를 검토한다.이를 위해 회복적 사법의 관점에서 현행 의료분쟁조정제도를 조망할 수 있는지 여부를 논의하고, 동시에 의료분쟁을 중심으로 한 형사조정과의 관계 속에서 변화하고있는 형사법의 임무와 책임귀속의 문제를 검토한다. 다섯째, 의료사고에 대한 분쟁조정과 형사제재의 합리적인 방안을 제시한다. 현재의 의료분쟁조정제도와 기존의 형사제재가 어떠한 관계로 정립되어야 하는지, 그리고 의료분쟁조정법의 주요 쟁점과 조정중재원의 위상과 역할을 중심으로 형사제재 뿐만 아니라 사법적 제재의 합리적인정책 방향을 제시하고자 한다.