좋은 죽음이란 무엇인가 ― 재택사에 관한 권리 ―

초록

For mortal beings, death signifies the end of life, marking its conclusion. For ordinary people, who cannot bear special sacrifices, a “well-dying (good death)” refers to a natural death that concludes life after a full lifespan, or, more specifically, a natural death occurring after a healthy life. The ultimate value pursued in a legal system where the Constitution is the supreme law is the “dignity of the individual”. For human dignity to exist, death must also be dignified, just as life is. Legally, a good death means such a “dignified death”. The traditional definition of death refers to the irreversible cessation of the functions of the heart (circulatory system) and lungs (respiratory system), resulting in the permanent loss of heartbeat and cessation of spontaneous breathing. In criminal law, the conditions for constituting a crime and the conditions for the initiation of inheritance in civil law are fundamentally defined as cardiopulmonary death. Recently, brain death has been added as a criterion for determining death. The practical reason for introducing brain death is to advance the point at which death is determined before cardiopulmonary death for the purpose of organ transplantation, which has also faced criticism for involving a utilitarian perspective. Passive euthanasia is the act of withdrawing life-sustaining treatments (such as CPR, dialysis, chemotherapy, artificial respiration, etc.), which is currently permitted by law. In contrast, active euthanasia, which involves the intentional act of stopping life through prescribed or injected medications, is punishable under Article 252 of the Criminal Code as murder or assisted suicide, so assisted dying (suicide) is not permitted under current law. If the right to life is classified as a civil right, it inherently includes the right to determine whether to maintain or forgo one’s life, following the principle of self-determination. Thus, the right to life encompasses not only the “right to live” but also the “right to die”. The ultimate value of the fundamental rights guaranteed by the Constitution is human dignity. Only a free human can be dignified, and only the death of a person who can exercise the right of self-determination concerning death can be evaluated as a “good death”. The right to self-determination regarding death includes the right to decide the time, place, and manner of death. Home death, as a choice to meet death in the home where one has lived until the end, is a form in which a good death is realized. Currently, the death notification requires a diagnosis or autopsy report that can only be issued by a physician, which complicates this process when choosing home death, effectively forcing hospital deaths due to structural obstacles. There is a need for an independent coroner system that integrates the authority for examination and autopsy. By granting practitioners with the qualification of a specialist the integrated authority for forensic judgment, the clarification of cause of death could shift from a criminal justice issue to a medical welfare issue.

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