• The Korean Society of Law and Medicine
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• v.9 no.1
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• pp.319-382
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• 2008

As a withdrawing care's study, the purpose of this study is searching about withdrawing care's acceptance and circumstances through Bora-mae hospital case(chapter 1). Withdrawing life-sustaining treatment has various forms. Though the meaning of euthanasia, death with dignity, natural death, physician assisted suicide are duplicated, the meaning of those are different slightly. Firstly, this study looks about the difference of the those meaning and acceptance range(condition) by withdrawing care's forms(chapter 2). Bora-mae hospital case sentenced guilty about physician who discharged incompetent patient who was after surgery by patient's wife determination. This Bora-mae case that sentenced guilty about discharge against medical advise(DAMA) that is regarded to custom has brought intensive confliction of legal, social, medical aspect, Bora-mae hospital case has many legal problems. First, as to criminal law rule 250(murder), the problem is whether discharge and withdrawing life-sustaining treatment is commission or omission. this study concluded omission(district court: omission, appeal, supreme court: commission). Because legal denounce point of discharge and medical treatment withdrawing is omission that physician who is obligatory on patient to cure. If physician's act is regarded omission, it is necessary to determine whether he has guardian status and obligation. Without guardian status and obligation, omission crime can't exist. This study decided that physician had guardian status and obligation and foundation of guardian status was pre-action or acceptance of emergency patient. Physician's medical treatment duty finished when patient(or patient's guardian) demands discharge. But when patient death is foreseen and other possible treatment does not exist, his duty of life prolonging treatment does not finish. This originate from physician's social responsibility and public status that limits patient's private liberty. This study regarded physician's action as accomplice about whether physician's discharging action is accomplice or the principal offender(district court: the principal offender, appeal, supreme court: accomplice). Though the principal offender needs criminal determination and action, there is no this common determination and functional action control of physician in Bora-mae case(chapter 3). Bora-mae hospital case partly originated from deficiency of legal, institutive system including medical security system shortage, the instruction is 1. medical security system strengthening, 2. hospital ethical committee's activity strengthening, 3. institutionalization of withdrawing life-sustaining treatment, 4. acceptance of pre-decision making system, 5. sufficient persuasion of physician for patient and faithful writing of medical paper, 6. respect for patients' self-determination and rights, 7. consciousness's changing for withdrawing life-sustaining treatment and persistent education about medical ethics(chapter 4). Considering Bora-mae case, medical sector is not the dead ground of a criminal punishment. Intervention of criminal law in medical sector give rise to ill effect, that is, excess medical examination and treatment, safeguard treatment, delay of discharge from a hospital. Because sufficient guarantee of life becomes mere empty slogan under situation that impose a burden of heavy cost to family or hospital, public and systematic solution should be given(chapter 5).

• Development and Reproduction
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• v.14 no.2
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• pp.143-154
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• 2010

This article analyzes two leading Korean cases which led to opposite conclusions: the Boramae Hospital Case (Korean Supreme Court 2002 Do 995) and the Shinchon Severance Hospital Case (Korean Supreme Court 2009 Da 17471). In doing so, it pays particular attention to the acceptance, modification, and rejection of paternalism, specifically 'physician paternalism' and 'familial paternalism', both of which have long and strongly influenced the Korean medical environment. In Boramae Hospital, the Court emphasized the obligation of the physician in terms of the life of the patient (eg: protecting and preserving the life and welfare of the patient). Its position seemed to be based on the traditional physician paternalism which presupposes the ability of physicians to identify right and wrong choices according to natural laws. However, the Court saw itself as the final arbiter of who identifies and determines the real world content and consequences of that natural law. In short, the Court elevated itself to the supreme guardian of the patient, and held that its decision cannot be overruled by that of the patient's family. So without specifically referring to the importance of the family and the role of familial decisions, both long-observed traditions in medical decision-making in Korea, the Court shifted away from familial paternalism. In Shinchon Severance Hospital, the Court explained the meaning of the patient's powers of self-rulemore concretely, explaining its scope and substance in greater detail. The Court held that one can exercise the right of self-rule, even over issues such as death, in the form of 'previous medical directions'. However, this case does not represent a wholesale acceptance of medical autonomy (ie: it does not accept self-rule unconditionally). Rather, the Court accepted the importance of the opinions and decision of physicians and of the Hospital Ethics Commission, and the Court still retained to itself the authority to review and make alterations to 'material' decision. The Court did not overlook the importance of the decision of the patient's family, but it also did not relinquish its status as supreme guardian, emphasizing the 'objective' nature of a decision from the court.