연명치료중단의 형법적 의의와 그 법적 성격 -대법원 2009. 5. 21. 선고, 2009다17417 판결을 중심으로-

For the first time in Korea, the Supreme Court of Korea permitted removing respirator from patients who was unable to recover from vegetative state. “Where a patient having entered into an irrecoverable fatal stage is recognized as exercising his or her self-determination based on human dignity and value as well as right to pursue happiness, termination of life-sustaining medical treatment shall be permitted as a matter of law,” ruled the Court in the judgment rendered on May 21, 2009, a landmark case for determining on the issue of murder (or commissioned murder) from the penal law perspective, as well. However, this judgment leaves much to be criticized in terms of its legal nature and the process of reasoning, thereby calling for a new alternative approach. Penal law scholars have long viewed terminating medical treatment of incurable patients as passive euthanasia, which can be lawfully permitted only when meeting some qualifications, according to the prevailing idea among the academic discussions. Yet, no attempt to justify euthanasia under any line of legal theory can possibly avoid colliding with the absolute penal law principle, “No one is authorized to take human life.” The question of whether human beings are vested with the right to kill human beings will remain unanswered. In this regard, however, the Supreme Court characterizes a patient’s election to refuse life-sustaining treatment as an exercise of his or her right to self-determination. This appears to have been influenced by Quinlan case in 1976 by New Jersey Supreme Court purporting that unwanted attachment to a respirator infringes on the constitutional right of privacy of the patient. As removal of medical treatment from a patient with terminating illness inevitably leads to death, such patient’s exercising self-determination can be regarded as equivalent to committing suicide. Then, this might trigger an old-fashioned lex naturae issue, “Does a man have a right to kill himself?” Other implications may lead to complexities, amongst which is a question whether the medical staff who assist patients to “commit suicide”are perpetrating a crime of aiding suicide under the penal law. Thus, even if we invoke self-determination as the legal nature of terminating medical treatment, we have yet to find reasonable grounds to avoid such unconstructive ramification of issues. To this Author, the legal nature of patient’s right to decline medical treatment is not a substantive right such as ‘right to kill’ or ‘right to die’, but simply a procedural right. It is a matter of choice on the part of the patient either to remain connected to a respirator for an infinite time on a hospital bed, or to remove the respirator and submit to nature’s way, the death. This Author labels this procedural right “the right to choose death process”.