Earticle

초록

영어

In connection to the civil liability of the medical malpractice, plaintiff and courts are solving the medical disputes with theory of the liability based on tort law. because contract law does not enact the right of claim of solatium and a plaintiff’s lawyer and courts hesitate to use contract law. Medical treatment of doctor is main debt in medical contract and its incomplete performance gives rise to the violations of human’s life, body and health. Consequently a breach of medical contract leads to violations of personal rights. These violations spring from liability of contract as well as tort and damages from them are recognized based on medical contract law. A duty of explanation of doctor is a independent and appendant debt to the treatment debt. However its breach provokes violations of human’s life, body and health as well as a right self-determination. Therefore consolation money claim should be recognized. In case of the violation of patient’s life, body and health, patient’s family also can demand consolation money due to the violation of their’s own mental pain. However in case of the violation of only patient’s self-determination without informed concent, they can not demand it by reason of the violation of patient’s self-determination. But by reason of the violation of patient’s life, body and health that were recognized by proximate causal relation between violation of duty of explanation and abd execution, they can do.

목차

I. 서론
 II. 위자료청구권의 발생원인으로서 의료계약
  1. 서설
  2. 의료계약상 의사의 채무의 특징
  3. 의료계약상의 채무의 내용과 불이행
  4. 의료과오의 해결방법에 대한 비교법적 검토
 III. 의료계약상 채무불이행과 환자의 위자료청구권
  1. 서설
  2. 의료계약 불이행으로 인한 환자의 정신적 손해가 특별손해인가?
  3. 설명의무 위반과 위자료
 IV. 의료계약상 채무불이행과 가족의 위자료청구권
  1. 서설
  2. 진료의무 불이행을 근거로 한 가족의 위자료청구권
  3. 환자에 대한 설명의무 위반의 경우 가족의 위자료청구권
 V. 결론
 참고문헌
 ABSTRACT

키워드

의료계약 채무불이행책임 불법행위책임 진료의무 설명의무 침습 자기결정권 위자료청구권 Medical treatment duty Duty of explanation Infringement Self Determination Informed Consent Consolation money claim

저자

• 봉영준 [ Bong, Youngjun | 한양대학교 강의교수, 법학박사 ]

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