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초록

영어

According to a case of Supreme Court's Sentence No. 2009DA17417 (May 21, 2009), the Supreme Court judges that ‘the right to life is the ultimate one of basic human rights stipulated in the Constitution, so it is required to very limitedly and conservatively determine whether to discontinue any medical practice on which patient's life depends directly.’ In addition, the Supreme Court admits that ‘only if a patient who comes to a fatal phase before death due to attack of any irreversible disease may execute his or her right of self-determination based on human respect and values and human right to pursue happiness, it is permissible to discontinue life-sustaining treatment for him or her, unless there is any special circumstance.’ Furthermore, the Supreme Court finds that ‘if a patient who is attacked by any irreversible disease informs medical personnel of his or her intention to agree on the refusal or discontinuance of life-sustaining treatment in advance of his or her potential irreversible loss of consciousness, it is justifiable that he or she already executes the right of self-determination according to prior medical instructions, unless there is any special circumstance where it is reasonably concluded that his or her physician is changed after prior medical instructions for him or her.’ The Supreme Court also finds that ‘if a patient remains at irreversible loss of consciousness without any prior medical instruction, he or she cannot express his or her intentions at all, so it is rational and complying with social norms to admit possibility of estimating his or her own intentions on withdrawal of life-sustaining treatment, provided that such a withdrawal of life-sustaining treatment meets his or her interests in view of his or her usual sense of values or beliefs and it is reasonably concluded that he or she could likely choose to discontinue life-sustaining treatment, even if he or she were given any chance to execute his or her right of self-determination.’ This judgment is very significant in a sense that it suggests the reasonable orientation of solutions for issues posed concerning withdrawal of meaningless life-sustaining medical efforts. The issues concerning removal of medical instruments for meaningless life-sustaining treatment and discontinuance of such treatment in regard to medical treatment for terminal cases don't seem to be so much big deal when a patient has clear consciousness enough to express his or her intentions, but it counts that there is any issue regarding a patient who comes to irreversible loss of consciousness and cannot express his or her intentions. Therefore, it is required to develop an institutional instrument that allows relevant authority to estimate the scope of physician's medical duties for terminal patients as well as a patient's intentions to withdraw any meaningless treatment during his or her terminal phase involving loss of consciousness. However, Korean judicial authority has yet to clarify detailed cases where it is permissible to discontinue any life-sustaining treatment for a patient in accordance with his or her right of self-determination. In this context, it is inevitable and challenging to make better legislation to improve relevant systems concerning withdrawal of life-sustaining treatment. The State must assure the human basic rights for its citizens and needs to prepare a system to assure such basic rights through legislative efforts. In this sense, simply entrusting physician, patient or his or her family with any critical issue like the withdrawal of meaningless life-sustaining treatment, even without any reasonable standard established for such entrustment, means the neglect of official duties by the State. Nevertheless, this issue is not a matter that can be resolved simply by legislative efforts. In order for our society to accept judicial system for withdrawal of life-sustaining treatment, it is important to form a social consensus about this issue and also make proactive discussions on it from a variety of standpoints.

목차

I. 들어가는 글
 II. 대법원 2009다17417 판결의 주요 내용
  1. 사건의 개요
  2. 대법원의 판단
 III. 무의미한 연명치료 중단 등에 관한 대상판결의 검토
  1. 우리나라 말기환자의 치료 현황
  2. 생명의 보호와 치료 중단의 갈등
  3. 회생 가능성과 의학적 적응에 대한 판단상의 문제
  4. 치료중단이 가능한 의료의 범위
  5. 치료중단을 구하는 환자 의사의 추정
 IV. 맺는 글
 참고문헌
 ABSTRACT

키워드

식물인간상태 의학적 적응 존엄사법 전문의 난치성 완화적 진정 생전유언 안락사교육협회 자연사법 Persistent vegetative state Indication The death with dignity act Consulting physician Refractory symptoms Sedation Living will Euthansia Education Council Natural death act.

저자

• 문성제 [ Seong Jea Moon | 선문대학교 법과대학 교수, 법학박사 ]

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