죽음에 대한 자기결정권과 형법 제252조 고찰

With the advancement of medical science and technology, death is understood as disease and medical failure, and as death can be continuously postponed, there is an increasing demand for self-determination regarding the time, place, and method of one’s own death. Life and death cannot be separated, but are connected. Life is not an absolute value. Autonomous decision-making regarding the time, place, and method of one’s own death is an important content of self-determination, and is an inviolable basic human right that an individual possesses as an essential content of human dignity. Therefore, the right to self-determination regarding death can be interpreted as part of the broader right to self-determination. This right is closely connected to the right to personality, the right to pursue happiness, and the right to determine one’s own destiny—elements that collectively constitute human dignity under Article 10 of the Constitution. Furthermore, this right to self-determination regarding death is also considered an individual fundamental right not enumerated in Article 37, Paragraph 1 of the Constitution. In addition, since the freedom of the body stipulated in Article 12, Paragraph 1 of the Constitution encompasses the right to make decisions about one’s own body, it can be interpreted as including the right to self-determination in matters of death. The exercise of the right to self-determination regarding death is subject to the same legal principles as other fundamental rights under the Constitution. It requires balance with the exercise of other fundamental rights, the scope of its exercise may be limited, and it may be subject to the application of the general provisions on restrictions on fundamental rights under the Constitution (Article 37, Paragraph 2 of the Constitution). It is necessary to institutionalize the right to self-determination regarding death so that it can be properly exercised. However, Article 252 of the Criminal Act, the crime of instigation and assistance in suicide and the crime of murder by request and consent, cannot be considered to have the legal balance of the protection of the right to life and the right to self-determination regarding death, as it blocks all methods of realizing the right to self-determination regarding death with the assistance of others. In order to balance the legal interests of the protection of the right to life and the right to self-determination regarding death, I propose that physician-assisted death be operated as a first step.