종교적 신념에 따른 수혈거부와 의사의 형사적 책임

Abstract

[The judicial precedent under discussion] is the case that a believer of Jehovah'sWitnesses refused blood transfusion because of religious creed, died during an operation,and following criminal liability drew public attention. The believers of Jehovah'sWitnesses reject not treatment itself, but just transfusion from another family accordingto their religious persuasion when choosing the method of treatment, so they don't giveup their life by rejecting medical treatment by a doctor. This choice of treatment methodscan be understood as autonomous decision by a patient, and in the reality, it's beingemphasized more than before as a patient's autonomy is becoming secured more andmore in the current medical environment. However, this reality becomes confronted withthe difficult problem that a doctor's right to treatment and a patient's right toautonomous decision conflict. In other words, a doctor come to face the risk to bepunished for the charge of professional negligence resulting in death when one respectsa patients' intention to refuse blood transfusion owing to the patient's religiousconviction and then the patient dies during an operation, and on the contrary, when adoctor makes a patient receive transfusion to save the patient's life while neglecting thepatient's intention to deny it, the doctor can be punished because of the charge of injuring a person or compel. In [the judicial precedent under discussion], the defendant violated the duty to predictthe result from the medical treatment activity and the duty to avoid the result, and thematter whether it conforms to the component of the criminal professional negligenceresulting in death. In specific, the defendant could have predicted much more seriousbleeding during the operation than expected in the examination process, and also thepossibility of the patient's death. In this situation, the treatment method without bloodtransfusion according to the patient's right to autonomous decision couldn't have beenthe best way, and the defendant should have quit the operation right away in order toprevent this danger, and sutured immediately to maintain the patient's life. Therefore,the defendant violated the duty of predicting the result and that of avoiding the result,which falls under the category of professional negligence resulting in death. However,the defendant gave a full explanation about operation without transfusion to the victim,based on which, the victim made a decision from voluntary and serious opinion ofhis/her own. It applies to the activity following the victim's consent in Article 24 ofCriminal Law, so illegality can be excluded.