불법행위책임의 관점에서 본 안락사

Euthanasia and Tort Liability

In this paper, the concepts of each type of euthanasia and its lawfullness are referred to and the tort liability of a physician involving in the unlawful euthanasia is analysed. According to the present writer󰡑s opinion, his or her conduct as a means of negative euthanasia would be lawful under two requirements: the medical futility of the patient󰡑s physical condition and his or her intention. This requirement could be established by his or her actual or presumed one. The presumed one could be formed subjectively or objectively. The present writer insists that the others󰡑 consent than the patient could not justify the euthanasia. According to his position, the conduct as a means of negative euthanasia is an ommission. If so, there is no act itself in any case that the requirements for the lawfullness are sufficiently met. It has been, however incorrectly, suggested that the conduct as a means of negative euthanasia be an commission. In the latter position, the meeting of the requirements could be a defense against the claim on the basis of the euthanasia. It is the present writer󰡑s opinion that any positive euthanasia could not be deemed as a lawful conduct. He did not succeed in finding the ground for justification of the positive euthanasia. The damages would be measured by the general theory of tort law. But it should be noted that the physical conditions of the victim or any one󰡑s misconduct should be taken into account according to the general rule of tort law.