Supreme Court Decision 2023Do3217, July 16, 2026 [Bodily Injury by Occupational Negligence]

【Holding】

[1] Requirements for finding occupational negligence on the part of a defendant physician in a criminal case arising from a medical accident / Standard and factors to be considered in determining whether a physician was negligent / Method of determining whether a physician was negligent in diagnosis

[2] Scope and content of a physician's discretion in choosing a method of treatment

[3] Degree of proof required regarding the "existence of occupational negligence" in order to find occupational negligence on the part of a defendant physician in a criminal case arising from a medical accident

[4] Degree of proof required regarding the "causal relationship between occupational negligence and the resulting injury, death, etc." in order to find a physician guilty of occupational negligence causing death or injury arising from medical practice, and whether the determination of causation in a criminal trial may differ from that in a civil trial on the same matter (affirmative)

【Summary of Decision】

[1] In order to find occupational negligence on the part of a defendant physician in a criminal case arising from a medical accident, it must be established that the physician could have foreseen and avoided the result but failed to foresee or avoid it. Whether a physician was negligent must be determined on the basis of the ordinary duty of care that an average physician engaged in the same practice or field should ordinarily possess, taking into account the general level of medical science at the time of the accident, the medical environment and conditions, and the special nature of medical practice. When performing medical acts such as examination and treatment, a physician must, in light of the nature of the work of managing human life, body, and health, take the best measures required to prevent danger according to the patient's specific symptoms or circumstances. In determining whether a physician was negligent in diagnosis, although a physician cannot make a flawless clinical diagnosis, it should be examined whether the physician, at least within the range of the diagnostic level practiced in the field of clinical medicine and on the basis of the medical ethics, medical knowledge, and experience required of a professional, carefully examined and accurately diagnosed the patient and thereby fulfilled the best duty of care necessary to foresee and avoid the occurrence of a dangerous result.

[2] In providing treatment, a physician has considerable discretion to choose a method of treatment that he or she deems appropriate according to the patient's condition, the medical standards of the time, and his or her own knowledge and experience. Therefore, unless such choice falls outside a reasonable range, it cannot be said, based on the outcome of the treatment, that only one of the options was proper and that taking a different measure was negligent.

[3] In order to find occupational negligence on the part of a defendant physician in a criminal case arising from a medical accident, the prosecutor must prove the existence of the physician's occupational negligence to the extent that the judge is convinced beyond a reasonable doubt. Where the prosecutor's proof falls short of that level, the defendant physician cannot be found guilty on the basis of occupational negligence even if there is a suspicion that such negligence may exist.

[4] In order to find a physician guilty of occupational negligence causing death or injury arising from medical practice, it must be proven by strict evidence beyond a reasonable doubt not only that the occupational negligence stated in the facts charged existed in the course of the medical practice, but also that such occupational negligence caused the result of injury, death, etc. to the patient. Causation is not presumed, nor is the required degree of proof lessened, merely because the physician's occupational negligence has been proven. As such, since a criminal trial requires proof of causation "beyond a reasonable doubt," the determination thereof may differ from that in a civil trial on the same matter.

【Referenced Statutes】

[1] Article 268 of the Criminal Act [2] Article 268 of the Criminal Act [3] Article 268 of the Criminal Act; Articles 307(2) and 308 of the Criminal Procedure Act [4] Articles 17 and 268 of the Criminal Act

【Referenced Precedents】

[1] Supreme Court Decision 2018Do2844, May 11, 2018 (Gong2018Sang, 1121)

[2] Supreme Court Decision 2008Do3090, August 21, 2008

[4] Supreme Court Decision 2010Do14102, April 28, 2011

Supreme Court Decision 2022Do11163, January 12, 2023 (Gong2023Sang, 463)

Supreme Court Decision 2021Do1833, August 31, 2023 (Gong2023Ha, 1764)

(Source: Supreme Court Decision 2023Do3217, July 16, 2026 | Judicial Information Disclosure Portal, Precedents)

2026. 10. 14. · By Attorney Dongwoo Shin