연명치료에 관한 계약법적 고찰
The Issues of Contract Law Related with Life-Sustaining Treatment
김천수
초록
This paper is related with the legal issues raised when the life-sustaining treatments are withheld or withdrawn. The issues were analysed from the point of view of contract law in this paper. This analysis was triggered by the precedent 2009DA17417 of the Korean Supreme Court. It is a historical judgment by which the removal of artificial respirator from a patient was permitted in accordance with the application of the remove by the family of the patient. The majority opinion of the precedent presumed properly the intention of the patient to remove the artificial respirator. The opinion, however, added improperly an element to the requirements for permission of the withdrawal of life-sustaining treatments. The improper element is that the patient should be on the verge of death. The judges joining the majority opinion overlooked the purpose or reason of the request and permission of the withdrawal of life-sustaining treatments. The purpose or reason is the removal of hindrances to the natural death itself. It does not matter whether he or she would be on the verge of death with the remove or would survived the remove for a long time. In this paper the legal theories and policy of a patient's 'living will' were analysed. The removal of hindrances to the natural death could be permitted only by the sincere intention of the patient. The critical element of the remove is the patient's intention, the ambiguity of which does not make only the physicians confront the difficulties in decision of the remove, but also the family face a dilemma relating to the application of the remove. The introduction of the living will system in a statute would solve the problems brought about by the presumption of the patient's intention related with the remove.