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Discussion on Withdrawing of life sustaining treatment

  • DONG-A LAW REVIEW
  • 2019, (82), pp.371-404
  • DOI : 10.31839/DALR.2019.02.82.371
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law
  • Received : January 31, 2019
  • Accepted : February 20, 2019
  • Published : February 28, 2019

Jaeho Lee 1 Hyeokdon Kim 2

1경북대학교
2가야대학교

Accredited

ABSTRACT

Our Hospice-Palliative Care and Life-sustaining Treatment Decision- making Act needs to solve the following problems. It does not take into consideration the possibility of exercising self-determination according to age, since it regulates only minority uniformly. In addition, regarding the writing of the patient 's medical intent, it seems that the minor can sufficiently prepare the medical intent just by interpretation of the words in the Hospice-Palliative Care and Life-sustaining Treatment Decision-making Act. However, under the Korea Civil Code, minors are not capable of independent legal acts, and they are allowed to perform certain legal acts under the consent of legal representatives. Therefore, it is necessary to properly divide the minors in consideration of their legal ability or mental capacity. The German Civil Code defines minor children as being under the age of 7 and under 19, and the German Social Code gives the possibility of additional claim right to minors with 15 years age or older. There was a precedent in the conflicts case between minor in 15 years old and a legal representative to give a veto right to a minor. It is also possible in our civil code to distinguish the legal acts of minor according to age. An example is the Korea Civil Code, which states that a 17-year-old minor has the ability to testify. There is a need to distinguish the minors under Hospice-Palliative Care and Life-sustaining Treatment Decision-making Act. And to secure the objective possibility of supplementing the minors' intentions to decide about Withdrawing of life sustaining treatment. In our case, the conflict of opinion between patient and his parent is highly likely to be decided by the parents' will, and there is little possibility to control it. In addition, the objective criteria for judging these presumptive opinions seem unclear. First, the basis for establishing the presumptive opinion of the minor shall be established. For this purpose, concepts such as patient welfare or best interests should be utilized. Furthermore, it may be another method of the courts' role in allowing the legal representative's consent to Withdrawing of life sustaining treatment. It is also possible to entrust an objective test to a public prosecutor who acts as a public prosecutor.

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