의사의 연명치료중단행위에 대한 형법적 정당화 요건과 구조

Abstract

The purpose of this study is to search the requirements and structure of the “Physician’s Withdrawal of Life-Sustaining Treatment(LST)” or “physician-assisted suicide(PAS)”, and to justify their actions in the context of the Criminal Law. If the patient died by “(Murder by) “the Physician’s Withdrawal of LST” or “PAS”, this comes under Article 250 Section 1(Murder), Article 252 Section 1(Murder upon the Request), Article 252 Section 2(aiding to commit suicide) of the Criminal Code. But, if this meets certain conditions, “the Physician’s Withdrawal of LST” or “PAS” could be justified. (1) The basic conditions: ⅰ) The Physician must behavior. ⅱ) It must meet the Justification of medical Treatment. (2) The objective conditions : ⅰ) The patient must be in an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death. ⅱ) Treatment of this stage must be a medical futility in the end-of-life care. (3) The objective condition : It must be a patient’s informed consent, self determination about “the Withdrawal of LST” or “PAS”. If the case meets all the conditions for its justification or if it does not meet some conditions, we will study the structure of justification about “the Physician’s Withdrawal of LST” or “PAS” in criminal law. (1) First, since this issue is related to people’s lives, there are various types of conflicts about the value. Thus, it is necessary to enact laws for physicians to be relieved from the legal disputes and to resolve specific problems (procedural legitimacy) related this process. (2) Meanwhile, it is necessary to solve the problems, related legislations are not exist, or legislation exists, but its interpretations are controversial, or exempted from the legislation. ⅰ) If it is clear that the patient is in an incurable and irreversible disease, the withdrawing of LST or aiding the patient to commit suicide would be legally allowed depending on their medical decision, regardless of the patient’s own will. But if it is clear that the patient is in an curable and reversible disease,the Physician should continue the treatment for patients. ⅱ) If it is not clear whether the patient has an incurable and irreversible disease or not, and if treatment in this situation is medical futility-within reasonable medical judgment-, “the Physician’s withdrawing of LST”or “PAS” can be allowed according to patient’s current, voluntary and explicit will for the purpose of ending his or her life (legitimacy on right to self determination). Thus, if the legal requirements for justification, including the patient’s will, are established, then they can be evaluated, it is an act which does not violate the Normal Social Rules (Korean Criminal Act Article 20).