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Criminal judgment and implications of self-determination right of terminal patient in foreign cases - Through Japanese and American precedents -

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2020, 8(2), pp.59-88
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : April 30, 2020
  • Accepted : May 19, 2020
  • Published : May 31, 2020

Hong, Tae-Seok 1

1원광대학교

Candidate

ABSTRACT

Human life is an important thing that cannot be exchanged for anything. Therefore, Korean criminal law sees human life protection as the biggest protection law. Thus, the criminal code, which includes murder and invasion of life sets the sentence high. However, there are cases of “unnecessarily infringing” - euthanasia and death with dignity. Of course euthanasia which actively terminates human life, is not recognized except in some countries and many countries including Korea already recognize death with respect to death with dignity. It is true that such euthanasia and death with dignity are still considered criminal problems such as assisted suicide as a matter directly related to human life. Until recently there were not many other opinions on the legality of euthanasia and death with dignity but there is a need to review the legality again. The direct cause of the move was the appellate court’s ruling on Japan’s so-called “Kawasaki Cooperative Hospital” case. Meanwhile, the U.S. precedent shows that if self-determination solves the problem it will inevitably lead to a bad result and based on this the abandonment of self-determination is required. However, it seems necessary to review whether this understanding of U.S. precedents and, by extension the flow of relativization of self-determination can be seen as reasonable. Considering the social background that the discussion on euthanasia and death with dignity must be accepted and the legal issues related to it, it is not easy to find an answer. The key to this problem is how to be free from criminal intervention as this problem can be problematic in various future situations. In this paper we reviewed the implications of Korea by referring to the situation of the Japanese appeals court’s ruling on the Kawasaki Cooperative Hospital case and the U.S. case which is considered important in determining the future direction of the discussion on euthanasia and respect.

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