臟器移植에 관한 형사정책적 硏究

윤영수 경상대학교 대학원 2002 국내석사

'The law on transplanting internal organs and etc.' was enacted and promulgated on February 8, 1999 and has been enforced since February 9, 2000 with a view to eradicating the illegal transactions of internal organs violating the provisions of the Constitutional Law on the dignity of human beings and running counter to the concepts of social ethics and providing all persons that need organ transplant with equal opportunity and at the same time legalizing the practices of extracting internal organs from brain-dead persons and increasing the supply of organs and giving new life to those who suffer from chronic organ failure. Yet the trouble is that the organ donation of brain-dead persons has decreased to about 33 percent and that transplant from living bodies has dropped to 20 percent. And organ transactions are still carried on and problems related to organ transplant have come to the forefront, and there is a need for a revision of the Law. In this context, this study focused on taking a look at the problems which have taken place since the enforcement of the Law as well as problems related to organ transplant from the viewpoint of the original purport of the Law and the criminal policies of the nation. Chapter II formulated organ transplant, part of doctors' medical treatment on the basis of established discussions by interpreting the concept in a broad and narrow sense, dealing with the features and kinds of transplant. Then the chapter covered the process of organ transplant, which was introduced as a therapeutic method, here to stay and evolving from a experimental stage with the development of Cyclosporine, a immunosuppressant in the 1970s, and took a look at the current practices of organ transplantation on the basis of the reports of medical fields and statistics related to organ transplants. Particularly, in Korea's case, the chapter dealt with the situation before and after the establishment of 'the law on transplanting internal organs and etc. ' Also the chapter took a brief look at American UNOS and Korean KONOS, the networks of organ distribution across the nation. Chapter II handled the history and contents of the Korean 'law on transplanting internal organs and etc. ' after taking a look at the process of foreign countries establishing the organ transplantation law and its contents in consideration of the fact that world-wide discussions about the legalization of organ transplant were launched in the process of organ transplant taking root as a therapeutic method due to the development of medicine and Korea; and that Korea established the law by making reference to the established laws of foreign countries. Chapter IV linked problems with brain death, the agreement of donors to the extraction of organs, and the illegal transactions of human organs, which come from the fact that organ transplants are a special medical behavior in need of the organs of others to the provisions of 'the law on transplanting internal organs and etc. ' First, problems with Brain death dealt with the adoption or rejection of the Brain-death theory, the determination criteria of Brain death and the provisions of the cause of death of brain-death people. Second, the agreement of organ donors, or their families, to organ extraction is of great importance, since organ transplant is not related to a medical treatment designed to help the donors, but capable of incurring serious problems or doing harm to the donors and the dead bodies, should be handled with care. Opinions about the subjects of the right to agreement the range and priority of those with right to agreement, and the method and limits of agreement, etc, may come into conflict with each other. This problem is closely connected with the difficulties of obtaining organs for transplant. The chapter dealt with the problems in terms of Brain-death persons and the deceased. Third, there are problems related to the illegal transactions of human organs in the wake of a discrepancy between organ supply and demand. Most of the nations around the world ban such transactions and punish those who commit a organ-related crime. But illegal organ transactions seem not to disappear because of such a discrepancy and a human desire for healthy longevity, so the chapter took a look at the problems of organ transaction. Chapter V brought the foreign cases, where human dignity and value and human rights were involved, to the forefront in relation to the transplant of ‘fetus's organs and etc.’ and took a look at the problems with the realities of abortion in Korea. On this basis, the research presented solutions to treatment using ‘fetus's organs and etc, ’ in relation to abortion problems. There have been attempts at materializing organ transplant and treatment using embryo cloning or human cloning. These problems of embryo cloning and human cloning cannot be morally, socially and legally legitimized, but the trends of the world seem to take priority in the matter. So the researcher thinks it necessary that legal devices should be worked out on the basis of a thorough analysis of problems with embryo cloning or human clone and the trends of the world. Chapter VI presented innovations about major problems related to organ transplant in consideration of the purport of 'the law on transplanting internal organs and etc.' and its problems related to the enforcement of the law as well as the results of the established researches. In conclusion, the researcher would like to make the following suggestions. Poor people with chronic organ failure should be given at least the minimum chance for an organ transplant, the national health insurance system should include all the areas of organ transplant and financial resources should be secured. As organ donors belong to a lower economic bracket, they should be provided with some compensation for a living. The researcher think it natural that those donors should be compensated in return for their organ donation to the humanitarian demand for free organ donation only means trying to ban commercial transaction.

뇌사와 장기이식의 윤리적 문제에 관한 연구

이태관 동아대학교 교육대학원 2003 국내석사

현대 의학과 의료기술의 발달은 인간의 삶과 죽음에 대한 새로운 문제를 던져주고 있다. 인공소생술과 생명연장 장치의 발달은 죽음의 기준을 뇌사로 주장하게 되었고, 장기이식 수술의 발달은 장기의 기증과 분배에 있어서 많은 윤리적 문제를 일으키고 있다. 심장과 같은 장기를 이식할 경우 그것은 사람의 생존에 불가결한 가장 중요한 장기인 동시에 오직 하나 밖에 없는 것이기 때문에 이식할 장기는 결국 사체로부터 적출할 수밖에 없다. 그런데 심장사에 도달한 후에 적출할 심장을 가지고 이식해서는 그 성공률이 낮아져서 바람직한 효용을 기대하기가 어렵다. 따라서 뇌사단계에서 심장과 같은 하나밖에 없는 장기의 적출이 필요하게 되어 종래의 죽음에 대한 개념의 변경이 불가피하게 되었다. 이처럼 뇌사가 논란의 대상이 되고 문제가 되는 것은 장기이식과 밀접하게 연관되기 때문이다. 장기이식 수술의 성공을 위해서는 보다 신선하고 좋은 장기가 필요하기 때문에 필연적으로 뇌사의 인정이 요구되는 것이다. 따라서 여기서는 일정하고 통일된 뇌사판정기준에 비추어서 인간의 죽음을 판정해야 된다. 오늘날 장기이식이 활발하게 시행됨에 따라 의학 분야에서는 과거에 없었던 새로운 윤리적 문제들에 대한 많은 관심을 일으키게 되었으며, 이에 우리는 장기이식에 대한 올바른 논의와 윤리적 방향이 제시되어야 한다. 우리는 어떤 행동이 도덕적인가의 여부를 판단할 때 윤리원칙들과 규칙들을 활용한다. 장기이식과 관련된 행위를 정당화하는 원칙으로는 자율성 존중의 원칙, 악행금지의 원칙, 선행의 원칙, 그리고 정의의 원칙 네 가지 근본적인 윤리원칙들에 의해서 고려되어진다. 장기분배의 문제도 공정하고 투명한 원칙에 의해서 분배되어져야 한다. 본 연구는 여러 가지 죽음의 정의에 대한 이해를 바탕으로 하여 현대 의학의 발달로 인하여 새롭게 대두된 죽음의 판정기준인 뇌사와 관련된 윤리적 문제에 대해서 살펴보고, 장기이식의 윤리적 문제와 장기분배의 문제에 대해서 다루고자 한다. The development of modern medicine and medical technology is raising new issues in relation to human life and death. The advancement of resuscitation and life extension equipment has led to the assertion of brain death as the criterion of death. And the development of organ transplantation has brought many ethical problems with organ donation and allocation. A particular organ like heart which is essential to human existence cannot avoid being extracted from corpse because it is the one and only organ. But cardiac transplantation with heart that is extracted after the organ is judged dead is difficult to be effective and successful. Thus the one and only organ like heart needs to be extracted when brain death. This inevitably changes the definition of death. The reason why brain death becomes a controversial issue is because it is closely related with organ transplantation. To make the transplantation successful requires more fresh and good organs. For this reason, brain death recognition is essential. Thus human death should be determined according to consistent, uniform standards of brain death judgement. More attention becomes paid to new ethical issues that have not existed in the field of medicine before as organ transplantation is actively pursued. In this sense, ethics about the operation should be established in a right direction. In determining whether a particular behavior is moral or not. we use ethical principles and rules. Four fundamental ethical principles which justify behaviors related to organ transplantation include 'the Principle of Respect for Autonomy', 'the Principle of Non-maleficence, 'the Principle of Beneficence' and 'the Principle of Justice'. In addition, organ allocation should be implemented in accordance with just, transparent principles. Thus the purpose of this study is to analyze ethical issues in relation to brain death and organ transplantation, which have been newly raised following the development of modern medicine, and problems with organ allocation, on the basis of understanding different definitions of death.