(영문) 서울중앙지방법원 2014.07.18 2014노1930

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(영문) 서울중앙지방법원 2014.07.18 2014노1930

업무상과실치상

Text

The prosecutor's appeal is dismissed.

Reasons

1. Summary of prosecutor's grounds for appeal;

A. In light of the fact that metal materials were damaged in the course of the instant surgery by the Defendant at the time of the instant surgery, the Defendant’s negligence is sufficiently recognized as to the fact that the Defendant was negligent in doing so, such as: (a) the Defendant used metal materials in fact; (b) the Defendant did not use it in an excessive manner; or (c) the Defendant did not understand the occurrence of ruptures in the process of the surgery; or (d) the Defendant did not understand the occurrence of ruptures in the process of the surgery.

Therefore, the judgment of the court below which acquitted the defendant on the fact that the defendant's negligence in the course of the operation of this case was damaged, is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

B. The sentence imposed by the court below on the defendant (the fine of KRW 10 million) is too unfeasible and unfair.

2. Determination on the grounds for appeal

A. (1) In order to determine whether a doctor was negligent in a medical accident, it is acknowledged that a doctor could have predicted or avoided the occurrence of the outcome, even though he could have been able to do so, and that it was not foreseeable or avoided. In determining the existence of negligence, the degree of general attention of the general public engaged in the same work and occupational category shall be based on the standard, and the level of general medical science at the time of the accident, the medical environment and conditions, and the specificity of the medical practice shall

(see, e.g., Supreme Court Decision 2009Do13959, Sept. 8, 2011). In addition, criminal facts charged in a criminal trial should be proven by a prosecutor, and a judge should be convicted with evidence having probative value, which leads to the conviction that the facts charged are true to the extent that there is no reasonable doubt. Thus, if there is no such evidence, even if there is suspicion of guilt against the defendant, the determination of guilt should be based on the interests of the defendant.

(See Supreme Court Decision 2002Do5662 delivered on December 24, 2002, etc.). (2) The court below is legitimate.

참조판례

-대법원 2002. 12. 24. 선고 2002도5662 판결

-대법원 2011. 9. 8. 선고 2009도13959 판결

유사 판례

-서울중앙지방법원 2014.7.18. 선고 2014노1930 판결

-대법원 2014. 5. 29. 선고 2013도14079 판결

-서울중앙지방법원 2013.11.07 2013노2280

-수원지방법원 2015.07.03 2014노818

-대법원 2015.12.10 2015도8165