원치 않은 임신에서의 부양비에 관한 비교법적 고찰 (The Comparative Legal Research on the Assessment of Child Rearing Costs for Wrongful Conception)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 24권 / 1호 / 333 ~ 370페이지
· 저자명 : 봉영준

초록

A claim for wrongful conception arises from the birth of an unplanned but healthy child following the negligent performance of an contraceptive device, sterilization procedure, abortion, or failing of controlling of embryo-number on the IVF by a doctor as well as pharmacist’s fault for prescription. In addition, the lawsuit against pharmaceutical firm or manufacturer of contraceptive device may be brought up by flaw of birth control pills or the device.
Questions that arise with this type of claim are whether a new baby itself is damage and who will pay for the cost of child rearing. Damages in wrongful conception cases are hotly debated among jurisdictions. Because a high level of value that is birth of human being is associated with damages in these lawsuits.
Usually, damages that are replacement contraception, the cost of prenatal care, labor and delivery expenses, and sometimes a small award for emotional distress are recognized in wrongful conception cases. However if the woman chooses to terminate the pregnancy, courts usually won’t force the defendant to pay for an abortion.
The method of the awarding damages for the cost of child rearing are divided in four theories. However I think that the allowance of costs of child rearing is not an aspersion upon the value of the child’s life, but is rather a recognition of the increase of welfare by a compensation. And this can realize the principle of damages in tort or contract law.
The nations that admit of the cost of child rearing calculate the cost by actual damages which will occur during the growth of a child until the age of majority while Seoul District Court in 1996 did calculate it by a change of consumption expenditure following the member of children for an average household in Korea without considering a household income which is the most important calculative factor in other countries.
It seems to me that the cost of child rearing must be calculated by the consumption expenditure in an average household rather than an income level of plaintiff which is primary factor in family law as getting a divorce. Because the damages in wrongful conception case are based on the liability law not family law and defendant can not predict how the income level of the patient is.
In conclusion, the assessment of the cost of child rearing should be fundamentally based on the income of an average household in Korea, the step of age and number.

영어초록

A claim for wrongful conception arises from the birth of an unplanned but healthy child following the negligent performance of an contraceptive device, sterilization procedure, abortion, or failing of controlling of embryo-number on the IVF by a doctor as well as pharmacist’s fault for prescription. In addition, the lawsuit against pharmaceutical firm or manufacturer of contraceptive device may be brought up by flaw of birth control pills or the device.
Questions that arise with this type of claim are whether a new baby itself is damage and who will pay for the cost of child rearing. Damages in wrongful conception cases are hotly debated among jurisdictions. Because a high level of value that is birth of human being is associated with damages in these lawsuits.
Usually, damages that are replacement contraception, the cost of prenatal care, labor and delivery expenses, and sometimes a small award for emotional distress are recognized in wrongful conception cases. However if the woman chooses to terminate the pregnancy, courts usually won’t force the defendant to pay for an abortion.
The method of the awarding damages for the cost of child rearing are divided in four theories. However I think that the allowance of costs of child rearing is not an aspersion upon the value of the child’s life, but is rather a recognition of the increase of welfare by a compensation. And this can realize the principle of damages in tort or contract law.
The nations that admit of the cost of child rearing calculate the cost by actual damages which will occur during the growth of a child until the age of majority while Seoul District Court in 1996 did calculate it by a change of consumption expenditure following the member of children for an average household in Korea without considering a household income which is the most important calculative factor in other countries.
It seems to me that the cost of child rearing must be calculated by the consumption expenditure in an average household rather than an income level of plaintiff which is primary factor in family law as getting a divorce. Because the damages in wrongful conception case are based on the liability law not family law and defendant can not predict how the income level of the patient is.
In conclusion, the assessment of the cost of child rearing should be fundamentally based on the income of an average household in Korea, the step of age and number.

참고자료

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