Earticle

2009년(평성21) 일본 장기이식법개정의 주요한 특징은 첫 번째로 제6조제2 항의 「뇌사자의 신체」의 정의에서 이식술을 위한 장기적출이 행해진 자라는 전제를 삭제한 것, 두 번째로 뇌사판정 및 장기적출에 관하여 본인의 서면에 의한 의사표시가 없는 경우에도 가족의 동의만으로 뇌사 판정 및 장기적출이 가능하게 된 것, 세 번째로 친족에게 우선제공의 의사표시가 인정되어진 것이다. 첫 번째 및 두 번째의 특징과 관련하여, 동법은 뇌사를 「사람의 죽음」으로 인정했다고 해석하는 입장도 적지 않지 만, 제6조제3항은 한편으로 뇌사판정 의 가부를 본인 및 그 친족의 의사에 의존시키고 있는 등, 동법은 또 종래의 삼징후사와 뇌사라는 2개의 죽음을 인정하고 있다고도 해석할 수 있다. 법적인 「죽음」은 삶에서 죽음으로의 잠시적인 과정 중에 있는 시점으로써 사람 개체로써의 죽음으로 인정해야 한다. 이에 대하여 현재의 뇌사는 의사의 입장에서 본 현재의 소생의료에서 소생한계점, 바꾸어 말하면 의사가 그 이상 의 치료의무를 부담하지 않는 시점을 가리키는 것으로 파악해야 한다. 최근에 뇌가 신체에서 유기적통합성의 중핵기관이 아니라는 가능성이 시사되는 등, 뇌 사설의 전제가 흔들리고 있다. 또 현행의 뇌사판정기준에도 의문이 들고 있다. 적어도 뇌가 신체의 통합성 의 중핵기관이다고 단언할 수 없는 현 시점에서는 법적인 사람의 죽음은 또 삼 징후를 기준으로 해야만 한다. 개정 장기이식법도 뇌사를 일률적으로 사람의 죽음으로 규정했던 것이 아니 라, 이식술을 전제로 하는 장기적출의 경우에만, (전)뇌사를 사람의 사망으로 인정한 것에 지나지 않는다. 형법 제202조는 동의살인을 처벌하고 있지만, 장기이식법의 뇌사판정의 경우에는 「뇌사」라는 의사의 치료의무의 한계시점을 객관적 기준으로 해서 온 정주의에 의한 생명보호보다도 본인의 죽음에 대한 자기결정이 우선되어지고 있다.

Term of medical malpractice litigation has not been accurately defined as a legal concept but it may be defined as a suit filed by the part of patients pursuing damage compensation against the people including medical professionals, who provided a medical practice at issue, and alleging that "the accident occurred out of the fault made in the course of such medical practice. In these medical malpractice litigations, it is difficult to prove the existence of objective facts causing a medical malpractice because: reenactment of such facts is hard to be made compared to those of other litigations for general damage compensation; and most of evidence in medical malpractice litigations are owned by the dependants, which make it hard to prove without cooperation of those dependants. Thus, it is said that this difficulties in fact proving is caused by the nature of medical practice itself. Therefore, applying general theories of burden of proof to medical malpractice litigations is necessary to be adjusted based on realities of medical malpractice litigations because such application may result in an one-sided disadvantage of difficulties in proving evidence on the patients, the plaintiffs, whatever the cause of action of such medical malpractice litigation is tort or failure to perform obligations. In response, it has been actively discussed to adopt theories including theory of alleviation of burden of proof, theory of conversion of burden of proof and the one of hindrance to proof of evidence. In this paper, I would like to deal with the theory of hindrance to proof of evidence and, under that theory, in the event that the evidence proving of a party having burden of proof becomes significantly difficult or impossible due to intentional misconduct or negligence of the opposite party having no burden of proof, such circumstances must be considered and adjusted in fact finding as an advantage of the party having burden of proving. In our country, this theory of hindrance to proof of evidence started to be discussed in 1970s and, on March 10, 1995, the Supreme Court in its decision adopted such theory with respect to the medical malpractice litigation on its reasoning that a party is allowed to have free suspicion so as to make the other party be at a disadvantage. Thereafter, lots of case laws based on such reasoning have been made so far. Under the present provisions of the Civil Procedure Act in Korea, there is no general provisions for judicial restriction and penalty on the conducts causing hindrance to evidence proving but only partial or specific provisions set forth them. In the event that the evidence proving of a party having burden of proof becomes significantly difficult or impossible due to intentional misconduct or negligence of the other party having no burden of proof, the other party should be imposed by certain punishment by the court and the theory of hindrance to proof of evidence appears at the stage. In such case, the issues are: if such conduct of hindrance is recognized, what kinds of judicial punishments must be imposed (considering their effects); and, if a punishment is imposed by the court, in what cases it can be justified (the grounds of punishment). In this paper, I examine the grounds and effects of judicial punishment under the theory of hindrance to evidence proving regarding medical malpractice suits in order to find alternatives to overcome the limitations of present laws in Korea so that a fairness is realized in the course of litigation in practice.

Mittlerweile ist das Selbstbestimmungsrecht eines Patienten als allge meines Grundrecht anerkannt; daher kann ein Patient dieses unter Beruf ung auf die ärztliche Aufklärungsplicht ausüben. Die akute Problematik b ei Indikationsabbrüchen lebenserhaltender Maßnahmen ergibt sich jedoch vor allem daraus, dass dieNutzung des Selbstbestimmungsrechts in jedem Falle einen klaren Bewusstseinszustand voraussetzt, welcher jedoch nich t mehr gegeben ist, wenn der Patient z.B. ohne mächtig ist oder aber b ereits im Komaliegt. In einem solchen Falle liegt auf Seiten des Patiente n grundsätzlich eine sogenannte Einwilligungsunfähigkeit vor. In der Rechtsprechung und herrscht ein Konsens darüber, dass das S elbstbestimmungsrecht des Patienten auch in oben genannten Fällen zu r espektieren ist. Sofern eine ausdrückliche Willensbekundung des Patiente n fehlt und auch nicht mehr rechtzeitig eingeholt werden kann, ist es dah er von besonderer Relevanz, die Äußerungen eines Patienten auch im Fa lle einer gegebenen Einwilligungsunfähigkeit ernst zu nehmen: In diesem Zusammenhang sei etwa die sogenannte Patientenverfügung erwähnt. Den noch bleibt die Frage nicht streitfrei, ob der in der Patientenverfügung fi xierte Wille nun dem aktuellen Wille des Patienten entspricht, oder nicht; daher ist nach wie vor äußerst schwierig, festzustellen, dass der darin g eäußerte Wille zum Zeitpunkt des Abbruches lebenserhaltender Maßnahm en maßgebend ist . Aus der Perspektive der Rechtssicherheit ist die Willensbestimmung aber auch bei einwilligungsunfähigen Patienten noch erforderlich. Für die rechtliche Verbindlichkeit einer Patientenverfügung müssen vor allemhöh ere und restriktivere Anforderungen gegeben sein, und auch deren Reich weite muss noch der gesellschaftlichen Übereinstimmung angeglichen we rden. Sofern der noch kurz zuvor geäußerte Wille bzw. die Patientenverf ügung nicht vorliegen, kann der wirksame mutmaßliche Patientenwille du rch den Betreuer im Sinne des sog. Betreuungsrechts ermittelt werden. I n einem solchen Falle können die Angehörigen eines Patienten jedoch w eder völlig noch grundsätzlich aus dem Willensbestimmungsverlauf unter Berücksichtigung auf koreanischen familienspezifischen Kulturtendenz aus geschlossen werden. Gemäß dem teleologischen Aspekt des Betreuungsr echts können die Familienmitglieder hier nicht als ein selbstständiges Su bjekt, sondern nur für die Aufsichtoder Besichtigung an die Willensauffas sungsgeschehen auftreten. Schließlich ist es bei der von Dritten ermittelten und festgelegten Ein willigung unvermeidlich, das Interesse des Dritten aufzugreifen; daher ist es in theoretischer Hinsicht in der Folge nicht mehr möglich, dem wirkli chen Willen authentisch zu entsprechen. Daraus folgt die Notwendigkeit der Kontrolle über die Willensbestimmung von Dritten, deren Gewährleist ung letztlich eine Aufgabe von (Vormundschafts-) Gerichten darstellt.

This thesis is a study on an embryo has the condition of being human or not. Someone has to be regarded as human being, he/she has a right of living, which is derived from the being a person in the moral sense. We have naturally thought an embryo is human, but today it becomes problematic whether an embryo is a human being or not. This argument has been raised by a rapid developing of biotechnology such as prenatal genetic screening, embryonic reproduction etc. In the biotechnology an embryo is surely not regarded as a human being, but only a living material. It can cause a deep moral injure to think an embryo is not a human being. For human being is a person in the moral sense, and a person has been only thought that can make us live freely. At last we have human dignity, when we live as a person. But the thought that an embryo is not a human being has brought about the possibility of ‘a human being without person’, which is conceived by P. Singer in his Practical Ethics(1991). Further more Singer criticizes a Kant’s view of human dignity as a ‘speciesm’ in the basis of a concept of a human being without person. In this paper I have examined a historical origin of Singer’s concepts, a human being without person firstly and a speciesm especially in comparison with Kant’s view of human dignity nextly. I have also examined that Kant’s concept of autonomy has to be substituted by ‘self-disposability’ in Singer’s bioethical viewpoint, but Singer’s viewpoint is also criticised by Sandel’s ‘ethics of genetic enhancement’ lastly.

Genetically modified organisms have been developed and used to deve lop a variety of genetic engineering techniques. As a result, we can enjo y various benefits. However, inherent limitations are also present becaus e it is a gene variant. Therefore, we cannot ignore the possibility that th is will influence our health or body in a negative manner. Therefore, me asures to prevent it in advance were discussed in the international move ment 'Cartagena Protocol on Biosafety', which was adopted, incorporated in to the subsequent national law obligations 「Transboundary Movement, Etc. of Living Modified Organizms Act(LMO Act)」, and is being implemented. This law has rules regarding, for example, the development, production, import, export, and distribution of genetically-modified organisms. Such ru les are required to ensure the safety of these living modified organisms. It must be clear that they do not negatively affect people's health or the environment. Additionally, international cooperation with respect to this is sue will be vital. To achieve these objectives with respect to genetically -modified organisms, procedures and regulations must be developed. Offi cials must follow them, and those that violate them must be penalized. Ho wever, in the LMO Act’s main contents are administrative regulations for the management of procedural matters. Thus, criminal sanctions for viola tions are not addressed, only administrative sanctions. In this paper, I e xamine the purpose and the intent of the LMO Act thorough the law-ma king process. I further analyze the regulatory penalties of the LMO Act to determine and rationalize the penal provisions. Excessive criminal sanctio ns need to be avoided, and this work will aid establishment of the appro priate penalties. It should satisfy the ‘Ultima Ratio Principle’ of criminal l aw.

Along with economic development, the concerns on the quality of life and health are growing in China. Accordingly, Chinese government stipulated medical related regulations and tried to solve medical disputes. However, the medical related regulations, stipulated as administration law with the purpose of imposing an administrative measure on the medical damages caused by a medical institution, are not effective to solve the liability for the medical damage compensation. The problems occurring under medical related administration law system have been solved as enacting <Tort Law> in December 26th of 2009 dealing with illegal acts(tort) independently. First of all, before the enactment of <Tort Law>, there was dual interpretation problem among administration law, which are <Measure> and <Decision>, on the compensation for damage under the General Principles of Civil Law. The problem stemmed from the conceptual difference of “damage” between administration law and civil law. Taking into account the problem, the concept of the damage caused by medical accident is homogenized under the Tort Law. As a result, the subject to burden the liability is prescribed by law which gives an advantage over recovering rights and interests of patients. Moreover, the compensation for damage problems under the administration law are complemented once again as subdividing liability for medical damage into “liability for medical technical damage”, “liability for medical ethics”, and “liability for medical product damage.” However, the Tort Law has left room to modification because of using the superfluous provision and the wrong concept about “the liability for the medical damage.” With this in mind, the article will examine the concept of damage under Chinese Civil Law and the concept of medical damage under the Tort Law first. It will also discuss the concept and type of the liability for the medical damage compensation generally. Hopefully, it will help Korean scholars study Chinese medical law.

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.