Review of the Special Provisions on Criminal Punishment under the Medical Accident Handling Special Act(draft bill)
Authors:   Journal of Law research, Ryu Bu-Gon 
Published: January 2025

Medical professionals are constantly exposed to the risk of criminal liability due to medical accidents. Of course, life and physical integrity are highly significant legal interests, and the negligent or careless acts of medical professionals must be subject to stringent criminal punishment. However, the majority of medical professionals engage in medical practice with the good faith intention of protecting lives, preserving physical well-being, and promoting health. Furthermore, human knowledge of medicine remains incomplete. This inherent limitation of human capabilities makes it challenging to render accurate legal judgments regarding medical acts and their outcomes. Therefore, it is inappropriate to treat medical accidents simply as criminal cases of legal interest infringement caused by negligence.
Against this backdrop, there has long been a discussion about introducing a special legal regime to exempt medical professionals from criminal punishment for medical accidents or to impose certain conditions for such exemptions. In particular, with the recent policy demand to ensure the stable engagement of healthcare personnel in essential medical fields, the government prepared a draft bill in February 2024 that includes special provisions on criminal punishment for medical accidents. This bill primarily distinguishes between essential medical acts and general medical acts. It also stipulates special provisions on criminal punishment as follows: (1) In cases where a medical accident causes injury (including severe injury), and the victim expresses an intention not to pursue punishment, the case will not be prosecuted. (2) If injury occurs due to a general medical act or if injury (including severe injury) occurs due to an essential medical act, the case will also not be prosecuted, provided the healthcare professional is insured for full compensation. However, these exemptions do not apply in cases where a medical accident results in death. That said, if the death is deemed unavoidable during the course of an essential medical act, the punishment may be optionally reduced.
The opinions reviewed in this article are oriented in two primary directions. First, to ensure the policy functions effectively in practice, unnecessary and formalistic distinctions should be removed. Distinguishing between essential and general medical acts, as well as between severe injury and death, is not aligned with the original intent of the bill. If special provisions on criminal punishment are deemed necessary from a policy perspective, a comprehensive and practical approach that transcends such distinctions in medical acts and outcomes is required. Second, appropriate measures must be devised to ensure that the special provisions on criminal punishment are not perceived as undue privileges. Simple measures, such as non-prosecution or penalty reduction in cases involving severe injury or death, may give the impression that criminal law is operating unfairly. Therefore, a concrete and detailed process should be established to carefully select the circumstances in which these special provisions are justified.