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문성제 ( Moon Seong-jea ) 한국외국어대학교 법학연구소 2006 외법논집 Vol.24 No.-
Organ transplantation, the finest example of modem medicine, is based on respect for human life in that it can deliver patients from malignant diseases incurable in past. Since the first successful operation in 1969 as followed by successful transplantation of liver extracted from a person with brain death in 1988, organ transplantation has been already one of most crucial medical arts in Korean and global medicine. Here, organ transplantation consists of 2 processes; one is transplanting organs for medical treatment of patients, and the other is extracting necessary organs from organ donor. The organ transplantation includes auto-transplantation(organ recipient = organ donor), xenograft(replacement with animal organs), insertion of mechanical organs and more. These cases don't involve any special legal issue except general issues in surgical operation such as medical adaptation for such treatments, technical criteria about such medical behaviors and patient’s agreement. But in case of xenograft that needs different organ donor from organ recipient, any one party concerned faces inevitable issues like lost organs or damaged corpse, and the other party benefits from survival or recovered health via transplantation. Because of this contradiction, the organ transplantation involves a question about how to resolve relevant legal issues. As shown here, it is also necessary to discuss extra legal considerations about different interests in organ transplantation between organ donor and recipient. Although there are issues concerned with organ transplantation in terms of organ recipient, it may be construed as general medical behaviors in regard to the nature of medical cure. However, from the standpoint of organ donor, even though the extraction of organ is indispensable for the cure of organ recipient, such extraction itself is not inherent behaviors of medical cure, so it is necessary to build up a series of legal principles to legitimate such behaviors. Here, they depend on whether certain organ is extracted from living organism or dead one. Furthermore, the extraction of organ from living or dead body involves a series of questions like whether to follow the intent of person who has a disposition authority, who the person is, which legitimate effects the expression of his/her intent may have in force, and so forth. In addition, in terms of organ transplantation from living organism for successful transplantation, conflicts concerned with brain death related to beginning and end of person as principal with capacity of enjoyment of rights have been already controversial in discussions between legal and medical circles since long decades ago. Fortunately, the latest enactment and enforcement of “Organ and Equivalent Transplantation Act” gives a clue to resolve these conflicts, but there are still little reviews and studies about potential issues concerned with human respect. It is possibly expected that there will be a series of brisk academic discussions about these issues. From this viewpoint, this paper focuses on posing questions related to organ transplantation and suggesting corresponding solutions.
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