환자의 자기결정권을 존중할 의무와 환자의 생명을 보호할 의무의 충돌 - 대법원 2014. 6. 26. 선고 2009도14407 판결 -

Abstract

This Article comes to collision between Respect duty for self-determination right of patient and Protection obligations for patient life in Supreme Court case. During the surgery, the doctor could not do the blood transfusion timely due to patient's strong will and therefore the patient died. The doctor was prosecuted Death by occupational negligence. He was sentenced not guilty both in trial and appellate court due to lack of illegality since the doctor treated the patient by the patient chosen way. In this case, the Supreme Court might think that the main issue should be which value is more superior between the self-determination right of patient and protection obligations for patient life when a Jehovah's Witness patient reveals his intention of refusal of blood transfusion for religious reasons. When these two conflicting values are compared, the former is not always superior to the latter. The former is equal to the latter only when special conditions are met. But the Supreme Court has yet to present the criteria. Here I want to present the criteria. If the patient's strong-specific will is regarded passing the limit of fundamental right exercise, then the doctor doesn't to respect the patient's illegal will and can do proper treatment what he think. In this case by substituting, doctors illegality is a sculpture by Consent of Victim. Consequently, it is reasonable to ask what the Supreme Court does not take responsibility for occupational negligence your doctor. I expect the combination of both in the future.