의식불명환자의 혈액 또는 소변의 채취 및 이용의 적법성

Abstract

The blood and urine of a suspect are the important evidence to prove his drunk driving or drug-intake. The Criminal Procedure Code, however, does not have any written provisons about the methods collecting blood and urine, only in the Road Traffic Act, it is required to get the consent of driver in collecting a blood sample for checking alcohol level. In the case of a drunken-driving suspect in a coma through car accidents or others, it is impossible to get his consent, so it is generally accepted that investigation authorities could take the suspect's blood and urine on the condition that the warrant be issued. It is a sort of compulsory investigation. But there is another problem. Because the Blood Alcohol Concentration(BAC) gets disintegrated 0.015% per hour, it is too late to take a suspect's blood and urine for investigation on drunk driving after issuance of a warrant. Considering it, the investigation authorities are used to collect the blood and urine of the unconscious suspect without his consent or the warrant from judge. That is, ① The investigation authorities ask the doctor to collect the patient's blood and urine for investigation, so that the blood and urine are collected without consent or a warrant. ② The investigation authorities ask the doctor to hand over the blood and urine already collected for treatment to them, so that they are handed over to the investigation authorities without concent of the patient or the warrant from judge. Furthermore, ③ The investigation authorities collect the blood and urine evacuated from the suspect's body hiding the intention of investigation, it is also the case using the blood and urine without the suspect's consent or the warrant. This Article analyzes 1) the cases and theories on the above case in Japan and Korea 2) its' Unconstitutionality and Illegality under the right to the personal information self-determination and the Codes related to medical services. This article argues 1) The doctor's behavior to collect the blood and urine of suspect in a coma without the warrant from judge or the consent of patient does not fall under the “treatment” in the Codes relating medical services, at the same time, it violates the right to self-determination on personal information of patient. So it should not be permitted. 2) For the purpose of treatment or investigation, the doctor's behavior to deliver over the unconscious suspect's blood and urine already collected to investigation authorities and the investigation authorities' behavior to use the personal information from the patient's blood and urine for investigation, both violate the right to self-determination on his personal information under the Constitution. So it also should not be permitted. In this point of view, the Supreme Court Decision 98Do968 delivered on Sept. 3, 1999. should be reconsidered, which ruled that despite the fact that the police officer confiscated some of the defendant's blood already collected for treatment from the nurse for the purpose of investigating the defendant drunken driving, there was no illegality even though the confiscating procedure was performed without the consent of the patient or his family or the warrant from the judge.