형법상 ‘국가의 생명보호의무’의 재고찰을 바탕으로 한 의사조력사 관련법제 정비방안

Abstract

The right to self-determination of life has been understood differently depending on the time and place. The right to self-determination is recognized only in the legal interests that an individual can dispose of, and the legal interests of others must not be infringed. However, if the principle of life protection is emphasized in that the right to life of others should not be violated, it becomes impossible to legally allow active euthanasia as well as physician-assisted dying or termination of life-sustaining treatment. In fact, there is some controversy over whether an individual, the subject of the right to life, can freely dispose of his or her right to life, but since the right to life can be said to belong to the individual, the right to dispose of oneself is acknowledged. If the basis for allowing the termination of life-sustaining treatment is derived from the patient’s right to self-determination, it is not easy to find a reasonable basis to deny ‘doctor-assisted dying’. This is because the legislative precedents of many countries that legislate the termination of life-sustaining treatment accept that “doctor-assisted dying” is included in the meaning of death with dignity. The patient’s request to remove the life support device already installed or stop treatment, and the medical practice following the patient’s request, can be seen as being involved in suicide. In this respect, the line between discontinuation of life-sustaining treatment, which is evaluated as passive euthanasia, and physician-assisted dying, which is evaluated as active euthanasia, becomes blurred. Therefore, it is necessary to change the perspective on the state’s duty to protect life under the criminal law by reviewing life-sustaining treatment termination and physician-assisted suicide. Recently, the concept of death with dignity based on the individual’s right to self-determination is being expanded in Austria, and Germany. The National Assembly of the Republic of Korea is also proposing the Assisted Death with Dignity Act in 2024. The state’s duty to protect life needs to find a way to recognize the patient’s right to self-determination in the passive aspect of the individual’s life protection claim. Therefore, referring to Article 115 of the Swiss Criminal Code, we can review ways to revise our criminal law regulations