법조 제75권 제3호(통권 제777호) 연구논문 - 222 - ❙Abstract❙ Distinguishing Occupational Negligence and Gross Negligence under the Korean Criminal Act - Implications for Criminal Immunity in Medical Malpractice -* 52) 53) Choi, Min-Young** The issue of criminal immunity for physicians in cases of medical malpractice has recently emerged as one of the central points of contention in ongoing conflicts between the government and the medical profession. In particular, proposals have been advanced to amend specific statutes so as to grant criminal immunity for ordinary negligence, excluding gross negligence, in cases involving the offense of occupational negligent homicide or bodily injury. Recently, an amendment to the Medical Dispute Mediation Act passed the National Assembly with this intent. However, the Korean Criminal Act separately provides for occupational negligent homicide or bodily injury alongside gross negligent homicide or bodily injury as distinct offenses. This legislative structure raises doubts as to whether it is doctrinally feasible to exempt occupational negligence— other than gross negligence—from criminal liability. Against this backdrop, this article examines the relationship between occupational negligence and gross negligence under Korean criminal law. It further reviews first-instance criminal judgments rendered over the past three years in cases involving physicians’ medical negligence to determine whether any decisions address the relationship between these two categories of negligence. On this basis, the article explores whether criminal immunity for medical negligence, excluding gross negligence, can be justified under the current interpretative framework of Korean law. In conclusion, Korean courts, in certain cases concerning physicians’ occupational negligent homicide or bodily injury, have taken the degree of * This research was supported by Kangnam University Research Grants(2025). ** Associate Professor, Department of Law and Administration, Kangnam University
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