무의미한 연명치료의 중단: 정당화가능성과 방향

이주희 경상대학교 법학연구소 2012 法學硏究 Vol.20 No.1

본 논문은 무의미한 연명치료 중단에 대한 형법 해석적 그리고 형법 정책적 논의를 수행하였다. 무의미한 연명치료 중단은 소극적 안락사나 조력자살과는 구별되는 고유한 의미를 담고 있다. 그리고 무의미한 연명치료 중단이 기존의 형법에서는 원칙적으로 살인 관련 범죄로 처벌될 가능성이 높다고 할 수 있다. 그러나 이러한 형법의 태도에 대하여 다양한 이의가 제기되고 있다. 특히 연명치료를 중단하겠다는 환자의 스스로의 결정이 존중되어야 한다는, 즉 환자의 자기결정권이 보장되어야 한다는 논거가 강력하게 제기되고 있다. 그러나 이러한 주장은 무시할 수 없는 문제점을 내재하고 있으며, 이러한 문제점을 해소하기 위해서는 일정한 전제조건이 충족되어야 한다. 다양한 문제점에도 불구하고 무의미한 연명치료 중단을 허용해야 한다는 학계와 실무에서의 주장은 강력하며, 앞으로 상당한 영향력을 미칠 것으로 예상된다. 형법 해석론의 변화를 통해 무의미한 연명치료 중단을 정당화하는 방안을 생각해 볼 수 있지만, 대체로 한계가 있다. 결국 형법 및 관련 법률을 개정 또는 제정함으로써 무의미한 연명치료 중단의 논의를 해결할 수밖에 없다. 새로 만들어질 법은 무의미한 연명치료 중단의 객관성과 엄정성을 확보할 수 있는 장치가 마련되어 있어야 한다. 무엇보다 무의미한 연명치료 중단의 남용을 방지하는 것이 중요한 과제이기 때문이다. 비록 무의미한 연명치료 중단에 대한 강력한 규제가 현실의 사정과는 다소 거리가 있다고 하여도, 형법은 생명보호의 비상브레이크로서의 역할을 소홀히 해서는 안 될 것이다. This paper deals with discussion about the interpretation and policy of criminal law in connection with the withdrawal of meaningless life-sustaining treatment. The withdrawal of meaningless life-sustaining has a intrinsic meaning as distinct from passive euthanasia and death with dignity. Furthermore, it is quite possible that this behavior will be punished on murder charges according to the current criminal law. But this result encounters lots of challenges. The strong grounds for an argument is the respect of self-determination of the patient about the withdrawal of treatment. Though this argument has a considerable problem, so that some conditions should be satisfied in order to solve this problem. Despite of many problems, it is very strong to argue that the withdrawal of meaningless life-sustaining treatment should be allowed. This assertion must have a effect in the future. First of all, it is possible to allow the withdrawal of meaningless life-sustaining treatment through the interpretation of criminal law. But this has some limits. Therefore this issue of the withdrawal of meaningless life-sustaining treatment can be resolved through the revision or the enactment of relevant regulation. The new regulation should have some guarantees to secure the objectivity of fairness of the withdrawal of meaningless life-sustaining treatment. It is an urgent problem to prevent possible abuses of the withdrawal of meaningless life-sustaining treatment. Even if tightening the regulation is often far from reality, but criminal law must fulfill its duties as an emergency break to protect lives.

무의미한 연명치료의 중단

점승헌(Jeom Seung Hun) 원광대학교 법학연구소 2013 의생명과학과 법 Vol.9 No.-

Lately, heated discussions have developed in the medical and academic circles as to whether patients' self-decision to cease their own life-sustaining care could be justified in light of respect toward death with dignity. What served as a decisive momentum for such discussions was the ethical and medical view of care for the terminally ill, followed by vehement debates in full scale from the medico-legal standpoint. The criminal law has maintained its firm stand against withdrawal of meaningless life-sustaining care from the view of so-called "the principle of absolute protection of human life". There have on the one hand been angles arguing that such perspective of the criminal law does not coincide with the reality but does only add extra burden on the part of patients' families and even medical staff as well, worsening their legal stability and possible anticipation in their living. On the other hand, there have been positions claiming that it would be too early to introduce withdrawal of meaningless life-sustaining care like shock therapy in theoretic as well as real terms. Lots of debates have already been well under way about the death with dignity along with the issue of euthanasia in Korea but have not met any positive approaches toward its solution. In this midst, the Supreme Court of Korea provided recently a criterion for death with dignity on the occasion of its first decree allowing such death. This measure is widely accepted as a representative example of 'judicial activism' with which the court ventured to stop gap between incomplete legislation and real situation by means of positive interpretation of laws in consideration of social pressure to see the death with dignity allowed whereas the National Assembly and the Administration have been overtly conscious of the public opinion. However, under the circumstances in which there is no legal support to determine the death with dignity in legal terms, there may still exist limitation in solving legal disputes to follow in the future by making use of this decree as the only legal basis. Since the court is essentially expected to interpret and apply the laws, it must be beyond its capacity to decide the issue of death with dignity since it requires of the court the sense of judgement equivalent almost to legislation.

생명 말기의 법적 안정성 : 환자의 생명 징후와 관련한 연명치료 중단의 허용 요건을 중심으로

류화신(Ryoo Hwa-Shin) 忠北大學校 法科大學 法學硏究所 2010 法學硏究 Vol.21 No.2

This study discusses legal issues surrounding the withdrawal of treatment for terminal patients. on May 21, 2009, the Supreme Court of Korea ruled that patients have the right to terminate medically meaningless treatment upon confirmation that their illness is indeed irreversible. The Supreme Court´s decision thus makes proof of the irreversibility of a patient´s condition an important process in legitimatizing a patient´s decision to terminate life-sustaining treatment. However, since medical practice rejects explanations in terms of "essences" and is affected by issues of subjectivity, I argue that physicians cannot give indisputable confirmation of the irreversibility of a patient´s terminal illness, as required by the Supreme Court´ ruling. So, this study points to a need for greater social consensus in Korea on the permissible level for the rejection of life-sustaining treatment not to damage the legal stability.

무의미한 연명치료의 중단

점승헌 원광대학교 법학연구소 2013 의생명과학과 법 Vol.9 No.-

Lately, heated discussions have developed in the medical and academic circles as to whether patients' self-decision to cease their own life-sustaining care could be justified in light of respect toward death with dignity. What served as a decisive momentum for such discussions was the ethical and medical view of care for the terminally ill, followed by vehement debates in full scale from the medico-legal standpoint. The criminal law has maintained its firm stand against withdrawal of meaningless life-sustaining care from the view of so-called "the principle of absolute protection of human life". There have on the one hand been angles arguing that such perspective of the criminal law does not coincide with the reality but does only add extra burden on the part of patients' families and even medical staff as well, worsening their legal stability and possible anticipation in their living. On the other hand, there have been positions claiming that it would be too early to introduce withdrawal of meaningless life-sustaining care like shock therapy in theoretic as well as real terms. Lots of debates have already been well under way about the death with dignity along with the issue of euthanasia in Korea but have not met any positive approaches toward its solution. In this midst, the Supreme Court of Korea provided recently a criterion for death with dignity on the occasion of its first decree allowing such death. This measure is widely accepted as a representative example of 'judicial activism' with which the court ventured to stop gap between incomplete legislation and real situation by means of positive interpretation of laws in consideration of social pressure to see the death with dignity allowed whereas the National Assembly and the Administration have been overtly conscious of the public opinion. However, under the circumstances in which there is no legal support to determine the death with dignity in legal terms, there may still exist limitation in solving legal disputes to follow in the future by making use of this decree as the only legal basis. Since the court is essentially expected to interpret and apply the laws, it must be beyond its capacity to decide the issue of death with dignity since it requires of the court the sense of judgement equivalent almost to legislation.