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초록· 키워드
Fault determination has always been a difficult and controversial issue in the determination of medical tort liability. Article 1222 of the Civil Code stipulates three situations for medical fault estimation and establishes objective standards for medical fault estimation, which has positive significance in overcoming the abstraction and uncertainty of the fault determination standard for "medical level" in Article 1221.
In judicial practice, Article 1222 (1) of the Civil Code can simplify the difficulty of determining the fault of medical torts, but there are also some problems. The judgment standards for medical violations of "duty of care" and "illegality" are often confused, the administrative and civil legal liabilities arising from medical violations are often confused, and the legal responsibilities of medical institutions and medical personnel in medical torts are not distinguished, There is even a trend of ‘illegal is wrong’.
This article analyzes the nature and circumstances of illegal medical behavior, and demonstrates the relationship between violating diagnostic and treatment norms and illegal behavior. It further suggests establishing a presumption rule of "illegal" and "fault", limiting the presumption of "illegal" medical behavior to "fault" in private language and excluding public law provisions; Establish hierarchical application rules when violating the "diagnostic and treatment norms" to presume "fault", thereby reducing the impact of the current confusion of diagnostic and treatment norms on the presumption of fault; The presumption principle of "illegality is fault" applies to violations of licensing laws and regulations; Violating the legal provisions of diagnosis and treatment and applying the principle of "proximate cause" presumption; The rule of presumption of evidence applies to violations of medical record laws and regulations. Through the above rules, objective evaluation of medical behavior and fair division of medical damage liability can be achieved.
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