A study on the concept and types of gross negligence in criminal liability for medical practice
Authors:   Journal of Law research, Hwang Man-Seong 
Published: January 2025

Recently, the government announced that it would establish special criminal provisions for medical accidents in order to allow medical professionals to focus on treating severe and emergency patients in a stable treatment environment, and to allow patients to receive prompt and sufficient medical treatment, thereby promoting national health.
While it is desirable that criminal responsibility for medical accidents be carried out through the exercise of the state's legitimate right to punish within the minimum necessary scope in accordance with the principle of supplementarity and the principle of responsibility, the indiscriminate expansion of medical criminal lawsuits will result in undesirable results not only for medical professionals but also for patients and the entire nation, and therefore, it is necessary to discuss special criminal provisions for medical accidents.
In general, criminal responsibility for medical accidents is mainly regulated by Article 268 of the Criminal Act as a crime of occupational negligence resulting in death, and theoretically, the concept and content of breach of duty of care in occupation are important factors in the nature of a crime of negligence. Our criminal law distinguishes between (general) negligence, occupational negligence, and gross negligence in the crime of negligent homicide, and stipulates occupational negligence resulting in death and injury and gross negligence resulting in death as grounds for increased punishment when compared to negligent homicide. Although our criminal law conceptually distinguishes occupational negligence and gross negligence, it stipulates the statutory punishments for occupational negligence resulting in death and gross negligence resulting in death are the same, so in practice, it only applies to occupational negligence resulting in death, which is relatively easy to apply, and does not deal with gross negligence resulting in death.
It would be unjustifiable to limit the exercise of the right to punishment to cases where serious consequences are caused by gross negligence in the duty of care. It would be necessary to ease criminal regulations under certain conditions for simple violations of the duty of care and negligent acts that do not have a direct causal relationship with the occurrence of the consequences. However, it would be desirable to impose severe criminal liability close to intent in cases where serious consequences are caused by gross negligence in the duty of care. However, it would not be easy for investigators to determine in specific cases whether there is a serious violation of the duty of care that constitutes gross negligence. In terms of minimizing criminal intervention as a means of rationalizing criminal procedures for medical practices in criminal procedures, it would be necessary to explicitly state the concept and types of gross negligence in the law. However, in order to establish specific reasons or secure normative power, it would be reasonable to delegate individual specific reasons to lower-level laws. In other words, it would be necessary to explicitly stipulate the concept of gross negligence in the law and stipulate the types of gross negligence as general reasons. In addition, in cases where the specification of the cause of gross negligence is delegated to lower-level laws, not only legal experts but also medical professionals must be included in determining the cause of gross negligence, and during the discussion, clinical reality must be taken into consideration when deciding the cause of gross negligence.