醫療契約의 本質과 法的 性質

A substance and nature of medical service contract

Todays, the relationship between a patient and a physician has been considered as contract. But Korea's Civil Code doesn't prescribe that contract for medical service is formal contract. And when patient sue against physician because of medical malpractice, there is little differences in burden of proof between contract liability and tort liability. Even if patient claim damages against physician on the ground of breach of a contract, courts have scarcely accepted the right for consolation on that. A medical service contract is similar to a mandate contract. Generally the aim of the medical service contract is to apply the medical technique to a patient. But medical service contract isn't the mandate contract. Also medical service contract differ from a common bilateral contract aspects of that not arisen a matter of the exception on adimpleti contractus and the liability of risk. So I think it is reasonable to consider medical service contract as a separate form of a contract. The draft amendment of Civil Code doesn't include the provision relating to medical service. So in order to apply theory of contract to medical service, the provision of mandate contract -the general provisions of the obligation, Mandate contract, Standard act of health and medical, Medical act etc.- must be applied by analoging. But there are limits in applying by analoging the provision relating to trust contract. And afterward medical technique will be improved and relationship of medical service can be changed. So I think it is necessary to make a special act for this changing environment of medical service for the patient.