Permission of Euthanasia under Criminal Law in Korea

The legal permissibility of euthanasia cannot be determined uniformly. On one hand, the type of euthanasia, and on the other hand, the patient's will decide whether a euthanasia is legally permitted or punished. In the case of Active Euthanasia is a doctor punished. If a doctor administers Active Euthanasia with the consent or commission of the patient, he is punished for committing consented or commissioned murder according to the first clause of the Article 252 of the Criminal Law. In the case of Indirect Euthanasia, it is legally permitted as long as it is not against the patient's will. There are various theories to justify Indirect Euthanasia, such as the denial of the dolus of murder, denial of the scope of protected legal interest, acknowledging it as a form of permitted risk, applying the emergency doctrine (immediate-peril doctrine), etc. Accordingly, Indirect Euthanasia is only permitted when the patient demands it or with his express or presumptive consent. As opposed to this, administering Indirect Euthanasia against the patient’s will would correspond to the crime of murder. In the case of Passive Euthanasia, the results many vary depending on the patient’s will. First, if a doctor abandons the treatment because of the patient’s demands, he will not be punished even for the death of his patient, because this would be respecting the patient’s right to self-determination. Second, when Passive Euthanasia is administered by a doctor while he is unable to know the patient’s will, the results may vary according to the following situations: ① When the patient is in a brain-dead status, abandonment of treatment is allowed because the patient would be considered dead according to the Criminal Law. ② When the patient is in a vegetative state and cannot express his will, his consent may not be replaced by that of his family members or relatives, or by that of any other interested individuals. ③ When a doctor abandons the treatment of a dying patient who is unable to make a free decision due to excruciating pain, thus causing his death, it would correspond to the crime of murder by inaction. If the patient would die in the same case because of the doctor’s treatment to alleviate the pain, this would correspond to the aforementioned case of Indirect Euthanasia and the doctor will be justified. If a patient dies because of the doctor’s abandonment of treatment despite the patient’s express demands, the doctor then would be convicted of murder by inaction.