태아의 초상권 보호 연구

Abstract

The recent decisions of the High Court in Seoul Korea 2019na2045228 (main court) and 2019na2045235 (countersuit) (hereinafter referred to as the target-decision) are cases of claims for damages due to non-performance of contractual obligations related to fetal ultrasound video supply service. In this decision, the court ruled that the legal nature of the ultrasound image of the fetus was the personal information of the pregnant woman, so that the mother of the fetus has all the right to take and dispose of the photo. In the case of a video of a ‘masturbating fetus,’ which was introduced in a parent counseling program aired on TV and became famous, even if the fetus grew up after birth, it was filmed, posted, and disseminated regardless of the person's will. It is questionable whether it should be possible or not. Of course, it is judged that the target decision has specific validity in the relevant case. However, considering that the types of ultrasound pictures vary from simple 2D black-and-white pictures to stereoscopic 4D pictures, and depending on the week of pregnancy, from small dots to shapes that relate parental features, a detailed review of fetal ultrasound video is not possible. seems necessary Article 3 of the current Civil Act stipulates that everyone is the subject of rights and abilities, and in the case of the fetus, it was an individual protectionism and exceptionally protected position. The Supreme Court precedent took an active stance in protecting the fetus, such as recognizing the eligibility of the insured in the accident insurance contract. Accordingly, there was a need to reexamine whether the existing theories and precedents can satisfy both specific validity and legal stability when applied to various problems related to fetal photos. Therefore, the purpose of this study is to present a position to recognize the right to portrait of the fetus, and to discuss that the fetus can be included as a person under Article 3 of the Civil Act for this purpose, and to deal with the need for re-discussion on the rights and abilities of the fetus. In this study, the area discussed in this study is divided into torts and general legal acts (typically contracts), and considering the provision for fetal birth in the claim for damages due to torts under Article 762 of the Civil Act It was confirmed that the discussion could be applied. In the case of juristic acts, if there are provisions in the civil law that take individual protectionism, they can be protected according to existing theories and precedents. However, in other areas, a new approach is needed, and methods such as institutionalizing a pre-procedural roadmap such as parental consent instead of maternal consent in the field of photographing fetuses or enacting portrait rights related laws should be introduced.