The Special Act on Handling Medical Accident and its Criminal Validity

According to the Special Act on Handling Medical Accident presented through a government hearing on February 29, 2024, if a medical professional has subscribed to liability insurance, a public prosecution cannot be filed against the patient's will even if the patient is injured or seriously injured due to medical malpractice. In addition, if a medical professional has subscribed to comprehensive insurance, a public prosecution cannot be filed if the injury occurs due to medical malpractice, a public prosecution cannot be filed even if a serious injury occurs in the case of essential medical treatment, and a sentence can be reduced or exempted even if the patient dies during an essential medical treatment. This article aims to discuss the criminal validity of the main issues of this bill. The position of this article on this matter can be summarized as follows. First, if we want to focus on essential medical treatment as the legislative intent of this bill, we need to discuss the definition of the concepts of medical treatment and essential medical treatment more broadly. If the concept and scope of essential medical care are not clear or there is no agreement among other members of society, especially medical professionals, it is highly likely that not only will it violate the principle of clarity in criminal law, but compliance with the norms will also not occur. Second, it seems reasonable to distinguish between simple negligence, gross negligence, and professional negligence, and not apply special criminal punishment in cases of gross negligence by medical professionals. At this time, it seems that further discussion is needed on the criteria for distinguishing between gross negligence and simple negligence. Third, it seems unreasonable at present to apply special criminal punishment to the results of serious injury and death. There is room to argue that special punishment should be applied to the results of serious injury on the premise of the victim's expression of intent not to punish, but work should be done to adjust the relationship with other acts such as the Medical Dispute Mediation Act in advance.