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| 발행년 : | 2010 |
|---|---|
| 구분 : | 국내학술지 |
| 학술지명 : | 刑事判例硏究 |
| 관련링크 : | http://www.riss.kr/link?id=A100252644 |
무의미한 연명치료중단의 형사법적 검토
저자명 : 안성준
학술지명 : 刑事判例硏究
권호사항 : Vol.18 No.- [2010]
발행처 : 한국형사판례연구회
자료유형 : 학술저널
수록면 : 1-38(38쪽)
언어 : Korean
발행년도 : 2010년
KDC : 367
등재정보 : KCI등재후보
KCI 피인용횟수 : 1
초록 (Abstract)
목차 (Table of Contents)
[대상판결] 법원 2009. 5. 21. 선고 2009다17417 전원합의체 판결
I. 대상판결의 판결요지
II. 대상판결의 의의와 개관
III. 의료법 영역에 있어 치료대상자의 자기결정권
IV. 생명연장장치 제거의 허용요건과 관련된 문제
V. 결론
[참고문헌]
[Abstract]
1. In Korea, since there have been no legislations or legal guidance about discontinuing life-supporting treatment, recent Supreme Court's decision which I deal with in this article has a significant value as this is the first decision to recognizes the withdrawal of life-prolonging measures to the incompetent and pronounce the legal grounds and the requirements of judicial approval. 2. Supreme Court holds as follows; a. Firstly, patients have the right to self-determination which is originated from human dignity and pursuit of happiness. They can previously decide discontinuance of life-sustaining treatment if they are in the condition when there is a degree of medical certainty that there can be no recovery and death is very imminent. This holding says this condition as “the stage of unrecoverable death.” b. Secondly, if patients apparently express their message to withdraw these kinds of medical treatment in the form of ‘living will’ under the informed consent, this expression legally regards them as using the right to self-determination. In addition, even if patients did not have an expression whether they withdraw the treatment, judges can assess whether they are in the stage of unrecoverable death and they can be approved of forgoing life-supporting treatment under the considerable hypothetical circumstances. 3. I point out several arguments in this article. a. To begin with, the decision in this case has some ambiguous and abstract criteria that make judges not easy to assess the recognition of withdrawal in specific cases. This point can make a dangerous consequence how courts depend upon not will of patients will, but attitude and mind of parents or guardians. Therefore I think that this theory which states in this case should more carefully apply the similar cases. b. In addition, I argue that courts should grant the claimant the power of authorizing the discontinuance of extraordinary means of sustaining the vital processes on the condition of observation of due process to make the least possibility of misdiagnose or misjudgment. c. Also I assure that the claim which petitions the discontinuance of sustaining means should be only accepted when the case has an achievement of the proper balance between individual respect as a right and human dignity as constraint, the interest of each party such as patient, parent or guidance, doctor, state or society.
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