환자의 수혈거부와 자기결정권의 한계 - 대법원 2014.6.26. 선고 2009도14407 판결을 중심으로 -

Abstract

1. According to the decision of the Supreme Court the negligent homicide as a result of the omission of the blood transfusion by the doctor can be justified, (1) when the obligation to save the life of a patient and that to respect the right of selfdetermination can be evaluated as equivalent or (2) when the doctor makes a choice between two conflicting values according to his professional conscience in case of having difficulties in evaluating the superiority of the one of them. 2. It seems that in the case of (1) above mentioned the Supreme Court applied Article 24 of the Criminal Act. There's a controversy about whether the omission of a blood transfusion as per the consent of the patient is not contrary to social ethic. This thesis agrees to the decision of the Supreme Court for the following reasons: ➀ The interest conflicting with the right of selfdetermination is not the life itself, but the danger of death, because the point of time for weighing of conflicting interests is located according to ex-ante decision not after, but before the death of patient. ➁ To decide that an act as per a consent of an injured person goes against social ethic, the negative factors of interest evalution must outbalance the positive factots. According to this criteria the omission of the doctor can be justified in the case that both of conflicting interests are of equal value. 3. In relation to the case of (2) the decision of the Supreme court can be edxplained theoretically only when it applies the thoery of 'law free zone'. But this thesis doesn’t agree with the theory of 'law free zone' because it has on the one hand an advantage to protect the doctor from legal instability, but on the other hand a disadvantage of violating legal stability seriously.