죽음에 대한 자기결정권의 헌법적 승인과 조력자살 제도화

The “right to self-determined dying” is not merely a matter of freedom to shorten one’s life; it raises a fundamental constitutional question about the extent to which human dignity and personal autonomy can be extended. Centered on this problem consciousness, this paper distinguishes between the withdrawal of life-sustaining treatment and physician-assisted suicide, and compares and analyzes the decisions of the German Federal Constitutional Court and the Constitutional Court of Korea. Furthermore, in anticipation of the inevitably emerging debate over the institutionalization of assisted suicide, it seeks to clarify theoretically the constitutional grounds and limits of its justification. The German Federal Constitutional Court recognized the “Recht auf selbstbestimmtes Sterben” (right to self-determined dying) as an essential component of human dignity and the general right of personality protected under Articles 1(1) and 2(1) of the Basic Law. The Court held that individuals possess the freedom to end their lives according to their own assessment of the quality and meaning of their existence, and declared Section 217 of the German Criminal Code—which punished assistance in suicide—unconstitutional, as it excessively restricted this fundamental right. This judgment marked a historic turning point, extending the scope of self-determination to the final phase of life and presenting a new constitutional balance between the state’s duty to protect life and the individual’s right to autonomy. If Korea is to pursue legislation on assisted suicide in the long term, it must first explicitly recognize the “right to self-determined dying” as a constitutional fundamental right. Granting only exceptional permission to choose death to persons in specific medical conditions or circumstances, without such recognition, would seriously distort the structure of fundamental rights. Fundamental rights are not “permitted freedoms” granted by the state, but rather “freedoms from the state.” Accordingly, any constitutional justification for assisted suicide must begin by affirming the fundamental right to self-determined dying and then rigorously examining the legitimacy of its possible limitations. In Germany, even after the unconstitutionality ruling, legislative adjustments have not yet been completed—demonstrating how complex the process of forming social consensus around the right to self-determined dying truly is. It is now time for Korean society to begin this discussion in earnest. What does dignity guaranteed by the Constitution mean, and what stance should the state take to ensure it? This is not merely a debate about the freedom to choose the shortening of life, but a careful inquiry into a fundamental constitutional question—how far the essential content of human dignity can reach.