존엄사에 대한 입법론적 고찰

Abstract

The concept of ‘death with dignity’ in Korea is mingled with the similar concepts of ‘withdrawl of life-sustaining treatment’ or ‘assisted suicide’, etc, on an advocate's own point of view. It is also difficult matter to classify the concepts and to make legislative measures because the meaning of ‘death with dignity’ has been changing and it does not exactly square with the meaning from the general classifications on euthanasia. Although the concepts of ‘death with dignity’ or ‘euthanasia’ are ambiguous, however, for the legislative measure of ‘death with dignity’,it is necessary that we should limit the discussion, in which the right to self-decision of terminal patients is respected in the best, and the meaningless medical treatment for the prolongation of life should be ceased. Even though the section 252 ① of the Korean Criminal Law provides that a person who kills another upon ones request or with ones consent shall be punished by imprisonment for not less than one year nor more than ten years, some criminal law scholars argue that withdrawal of meaningless life-sustaining treatment under required conditions would be a circumstance precluding illegality of the activity. However, euthanasia which is satisfied with the required conditions in the learned circles of criminal law does not make so many uses. Because euthanasia which is satisfied with the required conditions is logically vague, it is necessary to establish a reasonable standard for the death with dignity or the withdrawal of life-sustaining treatment. As a conclusion, I think that the followings should be considered for the legislation of the death with dignity. First, the decision of ‘pationts fallen into persistent vegetative state’ or ‘terminal patients’ should establish a medical standard with a clear and accurate procedure. Second, although it is important to discuss about whether the withdrawal of meaningless medical treatment should be admitted or not, we should also discuss the establishment of decision-making authority providing with its duties and supports if it is admitted. Third,it is necessary to establish a legal standard of the right to agree from a substitute instead of an unconcid. patient's declaration of intention. It is also necessary to give a chance to declarehiis/her intention preparing for the case that the patient might be unconcid. in near future. Fd.rth. pacase of the withdrawal of meaningless medical treatment, we should provide the extent of treatment withdrawal in the concrete. In this a case, we should also establish standards for ‘brain death decision,’ clear and accurate decision of recovery impossibility, and ‘meaningless life-sustaining treatment decision.’ Finally, we might consider the method in which we institutionally allow the withdrawal of meaningless medical treatement in accordance with custom, which is called as ‘Hospice’ before we make the Death with Dignity Act.