診療債務의 手段債務性에 대한 검토

An Examination on "the Obligation Moyens Theory" for Medical Obligation

&nbsp;&nbsp;There are many issues related to the civil liability of the malpractice. In the past, relation between physician and patient was considered not as the contractual relation but as the personal fiduciary relation. However, it is common that contractual relation exists when physician provides medical service. &quot;The obligation moyens theory&quot; derived from French contract law has influenced deeply and broadly on both Japanese obligation law and Korean obligation law. The theory has started with the issue of burden of proof.<BR>&nbsp;&nbsp;A prevailing opinion and the precedent in French law accepted &quot;obligation moyens theory&quot; that a doctor has a duty of reasonable care to perform his or her contractual obligation. So, it has been said that a patient as a plaintiff have to prove the doctor&quot;s negligence in the case of medical obligation. On the other hand, the character of &quot;oblgation r？sultat (result)&quot; lies in completion of the work. In case of &quot;oblgation r？sultat&quot;, if an obligator do not perform his obligation, the principal &quot;prima facie evidence&quot; applies.<BR>&nbsp;&nbsp;Since the appearance of this theory in 1980s, we, as a whole, agree &quot;the obligation moyens theory&quot; of medical obligation. Accordingly, it is recognized that there are two kind of obligations in conduct obligation. Medical obligation is nothing more than &quot;obligation moyens&quot;, practiced with a reasonable care for the complete recovery. The Korean Supreme Court have adopted the theory and held that medical obligation is &quot;the obligation moyens&quot; and the plaintiff take the burden of proof.<BR>&nbsp;&nbsp;However, we have to examine the &quot;obligation moyens theory&quot; according to Korean obligation law. Korean civil law consists in Pandect system. KBGB calls for the negligence of all kind of default on an obligation. So, the burden of proof for the fact of default lies in a plaintiff, a defendant as obligator has the burden of proof for negligence. I would say that &quot;obligation moyens theory&quot; can help the character of obligation to be disclosed and that the distinction between obligation moyens and obligation r？sultat is not absolute but relative. That is why a purpose of parties and the scope and the content of contract show the character of obligation.