형법상 업무상과실과 중과실 판단기준 고찰 - 223 - negligence into account at the sentencing stage. Given that occupational negligence and gross negligence differ in concept, nature, and the rationale for aggravated punishment, it appears normatively sound to treat occupational negligence and occupational gross negligence differently. If occupational negligence is understood as imposing a heightened duty of care on the actor by virtue of the professional nature of the conduct, the argument for granting criminal immunity for physicians’ ordinary negligence loses much of its doctrinal legitimacy, and the need to distinguish between ordinary and gross negligence within the scope of occupational negligence becomes more compelling. Conversely, if the level of duty of care required in occupational negligence does not substantially differ from that of ordinary negligence, the possibility of criminal immunity for physicians’ ordinary negligence correspondingly increases. Such an interpretation, however, is tenable only if the physician’s duty of care is equated with that of a layperson. Accordingly, unless the Criminal Act is amended to abolish the separate provision on occupational negligence, the question of criminal immunity for medical negligence is likely to remain a subject of continued controversy.
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