[2] In the case of a general hospital which is not a university hospital, whether the student’s explicit consent should be required to witness the child’s delivery process (affirmative), and the method of obtaining such consent

[3] The case holding that Byung has a duty to pay consolation money for violation of self-determination and there is no obligation to pay consolation money for Eul, in case where the mother Gap and her husband Eul, who given birth to her infant at a general father's hospital, not a university hospital, and her husband Eul, were present in the course of delivery without their own consent, and they received emotional distress due to violation of self-determination by witnessing the students who worked at a hospital in the course of delivery and received emotional distress

[2] A university hospital is an educational institution that renders medical treatment to train the patient's own opinion, and it is naturally anticipated that the student's clinical practice and witness is part of the curriculum, and the patient's opinion can also be predicted. Thus, in the case of a university hospital, the consent of the mother is allowed unless the dissenting opinion of the mother is explicitly expressed even without the consent of the mother's explicit. In the case of a general hospital which is not a university hospital, the student's witness shall be allowed only when the mother's explicit consent is given in accordance with the general principles. In addition, the consent of the mother should be obtained by sufficiently explaining the contents, etc. of the child's opinion before the commencement of the medical treatment by taking into account the special characteristics of the other childbirth process and by confirming that the mother's opinion is clearly expressed.

[3] The case holding that in a case where Byung or medical personnel of the hospital did not seek consent from Gap or Eul, or did not follow the effective way to confirm explicitly consent through sufficient explanation before the beginning of the first childbirth process, Byung is liable to pay consolation money due to violation of the right to self-determination, on the grounds that Byung or Eul did not have the duty to pay consolation money for the reason that Eul is not the main body to exercise the right to self-determination, and it was merely the family members of Eul, and thus not the main body to exercise the right to self-determination.

A. The Defendant shall pay to Plaintiff 1 3,00,000 won with 5% interest per annum from September 22, 2011 to August 29, 2012, and 20% interest per annum from the next day to the day of full payment.

B. The remaining claims of Plaintiff 1 and Plaintiff 2 are dismissed, respectively.

2. Of the total litigation costs, the part arising between the plaintiff 1 and the defendant shall be borne by the plaintiff 1; the remainder by the defendant; and the part arising between the plaintiff 2 and the defendant shall be borne by the plaintiff 2.

3. The above paragraph 1(a) may be provisionally executed.

The defendant shall pay to the plaintiff 1 22,003,31 won, 5,000,000 won, and 20% interest per annum from the day following the delivery date of the copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The part against the plaintiffs in the judgment of the court of first instance is revoked, and the defendant shall pay to the plaintiff 1 1 the amount of KRW 16,816,631, and the amount of KRW 4,00,000 and each of the above amounts to the plaintiff 2 at the rate of 20% per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

Defendant: The part against the Defendant among the judgment of the first instance is revoked, and the Plaintiffs’ claim corresponding to the above revocation is dismissed, respectively.

A. The plaintiffs are married couple, and the defendant was in charge of only the plaintiff 1's portion.

B. On April 5, 2010, Plaintiff 1 gave birth to the second infant under the Defendant’s charge at the ○○○○ Child Hospital (hereinafter “Defendant Hospital”). At the time, students attending the graduate school of the Jeonbuk University, which was in clinical practice at the Defendant Hospital, were in the delivery room and Plaintiff 1 was in the delivery room.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 5, Eul evidence 1, 2, Eul evidence 8-1 to 3, the purport of the whole pleadings

2. The plaintiffs' assertion

The plaintiffs asserted that the defendant, without the plaintiffs' consent, violated the plaintiffs' right to self-determination by allowing the students engaged in clinical training to witness the plaintiff 1's delivery process, and the plaintiff 1 suffered from the friendly disorder due to mental impulse, etc., and also suffered mental damage, the plaintiff 2 is obligated to compensate for the damage.

3. Occurrence of liability for damages;

(a) Whether the consent of the mother is necessary to witness the process of delivery;

All citizens have the right to self-determination that can freely form their living sphere by determining personal rights and the right to pursue happiness as provided for in Article 10 of the Constitution. The right to self-determination includes the right to decide on the disposal of their own life and body, the right to decide on the day of living day, the right to decide on the formation and maintenance of their families, and the right to sexual self-determination that can decide the other party. The mother in the course of delivery also has the right to self-determination on whether to allow a guardian or a third party, excluding the method of childbirth, the environment for childbirth, and the medical staff at the time of childbirth, etc.

In the case of women, childbirth is an act of creating a new life, whereas it is placed in a state in which mental or physical control can not be easily controlled due to the influence of armon, which is costed for extreme pain and minute, and the importance of body is exposed to others, and it is not possible to regulate the physiological phenomenon of the part, such as the ship, etc. accompanying the delivery process, and it may cause mental harm by stimulating the sense of shame of the mother's sense of shame when a guardian or a third party is present at the delivery process. Accordingly, in accordance with the above right of self-determination, the mother has the right to choose whether to disclose the part to third parties, including the students in practical training, according to the above right of self-determination, to have the third party witness the part of the part, who is not a medical team, obtain consent from the mother or his family, and on such premise, the mother may be allowed to choose whether to witness the part in advance by explaining the status, purpose of witness, and contents of the witness.

On the other hand, a university hospital is an educational institution that trains patients' own doctors and determines clinical practice and witness as part of the curriculum, and can naturally anticipate them from the patient's standpoint. Thus, in the case of a university hospital, the visit of the students should be permitted unless the mother's dissenting opinion is explicitly expressed, considering that there is no express consent of the mother for witness, even if there is no express consent of the mother for witness, but in the case of a general hospital that is not a university hospital, the visit of the mother is allowed only when the mother's explicit consent is given in accordance with the general principles. In addition, the consent of the mother should be obtained by sufficiently explaining the contents, etc. of the witness under the condition that the mother's opinion is clearly expressed before the beginning of the medical treatment in light of the special characteristics of other childbirth process.

B. Whether the plaintiffs consented in this case

In order for the Plaintiffs to impose tort liability under Article 750 of the Civil Act against the Defendant for emotional distress caused by the attending of the students, the existence of tort, namely, the existence of tort in this case, and the fact that there was no explanation and consent process as to the witness in this case, is the principle of proving that the alleged Plaintiffs should prove this. However, in light of the fact that the witness act of the delivery process itself has the nature of infringing the mother’s right to self-determination, and that it is extremely difficult to prove that all medical records and information about the delivery process has been possessed by medical personnel and that it was not performed by the mother’s side, it is extremely difficult to prove that the duty to explain was not performed by the mother’s medical personnel, it cannot be strictly demanded for the Plaintiffs to prove that

이 사건에 관하여 보건대, 앞서 든 증거들에다가 제1심 증인 소외인의 일부 증언, 제1심의 원고 1의 본인신문 결과를 더하여 인정되는 다음과 같은 사정 즉, 동의의 당사자인 원고들이 참관 과정에서의 피고 및 피고 병원 의료진의 설명 및 동의가 없었음을 일관하여 주장하고 있는 점, 피고나 당시 분만과정에 피고와 함께 했던 간호사 소외인은 원고 1에게 동의를 구하였던 구체적인 과정에 대하여 분명하게 기억하지 못하고 있는 것으로 보이고, 특히 소외인은 ‘당시 원고 1은 진행이 빨랐기 때문에 미리 동의를 못 구했을 것이고 분만실에 들어왔을 때 동의를 구했을 것으로 생각한다’는 취지로 증언하고 있는 점, 원고 1은 당시 분만과정에 남편인 원고 2가 참여하는 것도 원하지 않아 원고 2가 분만실 안에 들어오지 않았던 점 등을 종합하여 보면, 피고나 피고 병원의 의료진들은 원고 1의 분만과정에 학생들이 참관하는 것에 대하여 원고들의 동의를 구하지 않았거나 동의를 구하였다고 하더라도 본격적인 출산과정이 시작되기 이전에 충분한 설명을 통하여 명시적으로 동의 여부를 확인하는 유효한 방식에 의하지 않은 것으로 봄이 상당하다.

C. Sub-committee

Therefore, the defendant is obligated to compensate for damages suffered by the plaintiff 1 from the infringement of the above right to self-determination.

4. Scope of damages.

(a) Positive damage;

1) The plaintiffs asserted that the plaintiff 1 suffered from depression and stress disorder due to the acts of witness without the above consent of the defendant hospital, and that the defendant is obligated to compensate the plaintiff 1 for the property damage equivalent to the medical expenses.

2) According to the contents stated in the Evidence Nos. 2 and 4, Plaintiff 1 visited the hospital on July 18, 201 and was diagnosed on August 10, 201 with a friendly disorder, etc. on the part of Plaintiff 1 visiting the hospital on July 18, 2011. During the process, the physician who diagnosed Plaintiff 1 was anticipated to have necessary expenses for future medical treatment, but it was presumed that Plaintiff 1 first visited the hospital on July 18, 2011. The above diagnosis was conducted on August 10, 201, and was conducted on April 5, 201, and thus, it cannot be ruled out that there was any possibility of causation between the above act of witnessing and the act of Plaintiff 1’s interference without consent.

Therefore, the plaintiff 1's claim for the payment of the amount equivalent to the medical expenses is not accepted.

(b) consolation money;

However, even in such a case, the defendant is obligated to pay consolation money for mental suffering caused by the plaintiff 1's loss of an opportunity to make a decision on whether to witness the witness. The amount shall be determined at KRW 3,00,000 in consideration of all the circumstances, such as the age, family relationship of the plaintiff 1, the contents of the witness, and the degree of infringement on self-determination.

Meanwhile, Plaintiff 2 is merely the Plaintiff 1’s family member who is not the subject of witness or the exercise of the right to self-determination, and thus it cannot be recognized as consolation money due to the infringement of the right to self-determination. Therefore, Plaintiff 2’

C. Sub-committee

Therefore, the Defendant is obligated to pay to Plaintiff 1 3,00,000 won and damages for delay calculated by the rate of 20% per annum under the Civil Act from September 22, 2011 to August 29, 2011, which is the date of delivery of a duplicate of the complaint of this case to the Defendant, as sought by Plaintiff 1, in accordance with Plaintiff 1’s claim, as of April 5, 201, the date of delivery of the duplicate of the complaint of this case to the Defendant.

5. Conclusion

Therefore, the plaintiff 1's claim partially accepted the plaintiff 1's claim within the scope of the above recognition, and the remainder of the plaintiff 1's claim and the plaintiff 2's claim are dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair, the defendant's appeal is partially accepted and the judgment of the court of first instance is modified as above. It is so decided as per Disposition.

Judges Yang Young-hee (Presiding Judge)