인체조직의 의학적 이용에 관한 법적 문제 : 인체조직 제공 행위의 私法적 성질을 중심으로

Abstract

With the development of medical science, human tissue transplantation is used as a very important therapeutic method. Unlike solid organs such as the heart, liver, and kidney, human tissue has a relatively low frequency of immunological rejection and can be transplanted from a single donor to an unspecified number of beneficiaries. is. Therefore, it can be used widely by anyone after sterilization. From a legal point of view, the legal treatment of human tissue can be discussed from the point of view of property rights and the point of view of personal rights. From a proprietary standpoint, human tissue that is excised or separated by one's own decision belongs to the person from whom it originated, and can be said to be subject to property rights. As a legal matter between the donor and the recipient, the act of donating human tissue is a legal issue between the donor and the recipient. You can also request disposal or suspension of use. The provider has the right to withdraw the prior consent once given without suffering any disadvantage at any time. However, various questions arise, such as whether the recipient must always respond to requests for return, etc., whether derivatives that have already changed their shape are included, and what happens if they cannot respond due to loss or other reasons. In addition, with regard to the act of providing human tissue, it is possible to consider two configurations: a gift contract and a loan contract. You can think of your own contract type with modifications depending on your needs. It can be said that the legal nature of the act of donating human tissue for research use is basically similar to a gift. Since human tissues are derived from humans, donors also have an aspect of alter ego. This makes it possible to agree with the intention of the donor that he/she has any rights or at least benefits to the human tissue provided, regardless of whether or not it is anonymized after the provision. In other words, the intention is purely to give rather than to lend or keep, and usually neither the donor nor the recipient intends to return it. Therefore, it would be reasonable to use a gift-like arrangement between donors. In principle, the donor has no rights or obligations with respect to the human tissue after the donation. However, if it is desired to impose any conditions or obligations on the recipient in relation to the intention of the provision, etc., it is also necessary to allow this to be possible by using a structure similar to a gift of the burden or a gift with cancellation conditions.