The gist of the grounds for appeal by the prosecutor is that the defendant was negligent in finding that the victim was aware of the victim's situation with the patient with general high-ranking disease, and that the patient with the same condition as the victim had no experience in performing an operation by bloodless surgery, and that the victim was able to perform an operation by bloodless surgery. (In fact, there is a duty to perform an operation by bloodless surgery for the victim when the patient's life is in critical situation. Therefore, the judgment of the court below that the act with the consent of the victim was dismissed, which affected the conclusion of the judgment, is erroneous in the misapprehension of legal principles, which affected the conclusion of the judgment (legal reasoning).

2. Summary of the facts charged in this case

The Defendant, as ○○ University Hospital’s regular outdoor surgery and doctor, is a person engaged in the spawn surgery, etc., and the victim Nonindicted Party 1 (inn, 62 years of age) is a person who suffers from tuberculosis infection on the right upper part, and has undergone a spawn surgery around 1974 after suffering from tuberculosis infection on the right upper part.

As to whether it is possible for the Defendant to perform an operation to replace the right upper part of the patient at the ○ University Hospital Man-type and the outpatient clinic located in Gwangju (location omitted) without blood transfusion between the Defendant and the Defendant from the first half of December 2007, the Defendant determined that a person engaged in the above medical service is capable of performing an operation to replace the right upper part of the patient’s life and body by examining closely whether he/she can cause danger to the victim’s life, and whether he/she can easily prevent any danger to the victim’s life and body by checking whether he/she can cause danger to the victim’s life and body, despite the fact that the victim’s age is an old age. In such cases, the Defendant determined that a person engaged in the above medical service may not neglect the victim’s health and body by failing to perform the above operation.

At around 11:00 on December 20, 207, the Defendant: (a) performed a sprinking surgery to the right side of the victim at the ○ University Hospital operating room; (b) cut the victim’s blood pressure into the right side of the surgery, hacks, knife, and knife; and (c) cut the victim’s blood pressure into the right side of the victim; (d) there were a large number of blood transfusions due to the sprinke; (e) around 12:30, Non-Party 4, a medical specialist outside the blood transfusion, continued blood transfusion without blood transfusion; (e) suspended the surgery; (e) around 15:05, the Defendant moved the victim from the surgery room to the surgery; and (e) the victim’s blood pressure was at least 3,600 square meters from the surgery to the patient’s spuleume immediately; and (e) the victim’s blood pressure at the time of the surgery to the patient room to the victim’s 70.5mm.

3. The judgment of the court below

A. Fact-finding by the court below

(1) Circumstances before the operation

(A) Around 1975, the deceased Nonindicted Party 1 (hereinafter “the deceased”) suffered tuberculosis infection on the right upper part of the center of the 1975, and received the pelvis and the pelvise surgery from △△△△△ Hospital. After which, the pelvis and the pelvise came to undergo an operation to exchange the right upper part of the pelvis with the artificial pelvise.

(B) On November 2007, the Deceased asked to undergo a surgery in which another person’s blood is not blooddy (hereinafter “diverous blood transfusion method”) as a son and witness, the Deceased asked to the △ Hospital located in Incheon, △△ Hospital located in Seoul, and the University Hospital located in Busan, and the △△△ Hospital located in Busan. The foregoing hospital rejected the surgery by blooddying for the following reasons.

① In the event that a person’s artificial insemination is carried out after a person’s artificial insemination, it is difficult to give a blood transfusion different from the general artificial insemination, so that it is inevitable to give an inevitable treatment of blood transfusion because the person’s blood transfusion is high. In the case of a blood without blood transfusion operation, the person’s blood transfusion operation is administered before the operation, and then the person’s age is to preserve the blood transfusion without blood transfusion. In the case of a blood transfusion operation, it is necessary to determine that the patient’s age is clinically 66 years of age, and thus, it is necessary to give a blood transfusion (in the investigation record 340 pages).

(2) △△ Hospital: It was determined that it would result in an operation in which it is difficult to take more time than ordinary high-ranking surgery because it was destroyed to the right side, and there was a reduction in the number of installments and the establishment of an annual installments (investigative Records 325 pages).

③ The University Hospital of △△△, a regional university hospital in △△△: A regional university hospital needs to be re-exploited in a state where many people have considerably destroyed the right angle, but it was impossible to perform surgery because it refuses blood transfusion during an operation due to personal reasons (investigative Records 333 pages).

(C) On December 4, 2007, the Deceased asked ○ University Hospital whether the Defendant could undergo an operation by bloodless surgery from the hospital located in the three locations of the above inquiries. In order to verify the deceased’s condition, the Defendant was in an extremely serious degree of the x-ray shooting, and the x-ray was in a state where the bones was melted by tuberculosis, and the x-ray was in a state where the bones was melted by tuberculosis, and the x-ray was expected to undergo an operation because the x-ray and the degree of the x-ray was serious.

(D) On December 12, 2007, the Defendant had the Deceased conduct an overall test necessary for the surgery to determine whether to conduct the surgery on the Deceased, and then asked the Deceased whether it is possible to conduct the surgery by means of blood transfusion within the blood species department of the above hospital, and asked him/her whether it is possible to conduct the surgery within the blood species department of the above hospital. After ascertaining the outcome of the examination and answer, the Defendant determined that it is possible to conduct the surgery on the Deceased by means of blood without blood transfusion, and had the Deceased hospitalized the Deceased.

(마) 망인은 2007. 12. 17. 위 병원에 입원하여 기본적인 검사를 받았는데, 주1) 혈소판 수치는 271,000㎕(정상수치 150,000~400,000㎕), 헤모글로빈 수치는 12.6g/㎗(정상수치 12.0~16.0g/㎗), 알부민 수치는 4.08g/㎗(정상수치 3.8~5.3g/㎗)이었고, 응고검사도 정상이었으며, 소변검사와 간검사에서도 별다른 이상이 없었다.

(f) On December 17, 2007, the Deceased knew to the above hospital through this letter that “I will entirely prohibit all blood transfusions or all ingredients blood transfusions in the treatment. The medical personnel in charge may not be aware of the necessity of blood transfusions or blood ingredients, but even if so, I do not change this policy. I will draw up this medical/ religious letter after I will examine and examine the problems related to women’s care status and witness status, and will not ask the patient and the medical personnel in charge for civil or criminal responsibility. I will not ask the patient and the medical personnel in charge of the treatment for any damage caused by this policy, and will not give the patient a clear statement of exemption from responsibility to indicate that I will receive blood transfusions from another person (hereinafter referred to as “blood”).

(G) On December 19, 2007, Non-Indicted 2, along with Non-Indicted 5’s major in the anesthesia pain medicine of the above hospital, explained that large-scale transfusions may occur during the surgery, and in such a case, Non-Indicted 6, who is his/her father and his/her father’s father, may have a high possibility of long-term damage and death during the surgery (However, Non-Indicted 6’s signature in the anesthesia Clause (Investigation Record 291 page)). Non-Indicted 6, on his/her corridor pursuant to Non-Indicted 5, stated that the deceased would have a high possibility of blood transfusions if necessary, even if he/she did not have a blood transfusions.

(2) Progress of the operation

(A) On December 20, 2007, Nonindicted Party 2 confirmed that the deceased’s intent to refuse to give another blood transfusion is valid again on December 20, 2007. The deceased strongly refused to give another blood transfusion, but agreed to use an artificial blood transfusion (cel 2) or Note 3).

(나) 피고인은 11:00경 위 병원 수술실에서 수술을 개시하였는데, 먼저 망인의 엉덩이 부분의 피부를 절개하여 근육조직을 박리하고 나서 수술용 톱, 망치, 칼 등을 이용하여 우측 대퇴부와 괴사된 대퇴골부 사이를 절단하였다. 피고인은 망인의 대퇴골부와 주변의 근육조직이 엑스레이 사진으로 볼 때보다 훨씬 더 심하게 유착된 것을 확인하고 혈관이 파열되지 않도록 주의하면서 위와 같이 절단술을 시행하였음에도 대퇴골부 주변에 있던 혈관이 파열되었다. 그 후 고관절 강직이 해소되었는지 확인하기 위하여 관절운동을 시키니 절단된 대퇴골부와 그 주변에 있는 파열된 혈관에서 출혈이 있어 12:30경 급히 혈관외과 전문의인 공소외 4를 불러 혈관봉합술을 시행하도록 하였다. 이로 인하여 파열된 혈관에서는 더 이상의 출혈이 없었으나 절단된 대퇴골부와 그 주변조직에서 계속해서 출혈이 발생하였다. 보통 인공고관절 수술을 하는 경우 300~500㏄ 정도 출혈이 있고, 많은 경우 1,000㏄ 정도 출혈이 있는데, 망인의 경우 이를 훨씬 초과하는 대량출혈이 있었는바, 망인으로부터 출혈된 혈액 중 셀 세이버를 이용하여 망인에게 다시 투여한 혈액만도 3,689㏄나 되었다. 이후 망인은 급격한 출혈로 인하여 범발성 응고장애가 발생하여 지혈이 되지 않았다.

(C) Accordingly, the Defendant had Nonindicted 3, outside of the operation room, and asked the deceased’s family members of the operation room, who explained the deceased’s condition, and asked them whether they would make a blood transfusion. Since the deceased’s husband was a new witness, the deceased’s husband refused a blood transfusion, on the other hand, the deceased’s children expressed their opinions among the family members, such as the deceased’s children who want a blood transfusion strongly.

(D) When the deceased’s blood transfusion continued, the Defendant discontinued the surgery, and moved the deceased to a middle-patient’s room at around 14:50. After that, the husband of the deceased consented to the other side blood transfusion, and the entire family members of the deceased wished to undergo the other side blood transfusion, but at the time, there is a possibility that the other side of the hospital may deteriorate the symptoms of the deceased, as the other side of the hospital could have aggravated the symptoms of the blood transfusion and the other side of the hospital did not perform the other side blood transfusion.

(E) At around 21:35, the Deceased died of a large quantity of real blood in the hospital’s middle-patient room.

(3) The current status, etc. of treatment by means of without blood transfusion

(A) As a result of continuous development of medical technologies that can refuse blood transfusion for religious reasons or perform safe surgery without blood transfusions on account of infections through blood transfusions or potential infections of A.I.S., currentlessless surgery by blood transfusions is widely conducted in all fields. It is possible to conduct complicated surgery by blood transfusions if it is possible to increase the blood chronological range before the surgery to the normal extent, to preserve the patient’s blood by using accelerator while giving the blood as much as possible during the surgery, and to treat the patient’s blood by administering iron powders and drugs after the surgery.

(나) 국내에서도 부천 ▽▽병원을 효시로 ◎◎◎ ◎병원(서울, 부산), ◁◁◁◁의료원(서울, 부천, 천안, 구미), ▷▷대병원(천안), ☆☆대병원(부산), ♤♤대병원(대구), ◈◈대병원(대전), ◐◐대병원(대전) 등을 비롯한 많은 병원들이 ‘무수혈 센터’와 무수혈 치료 프로그램을 운영하면서 무수혈 치료를 하고 있다.

(C) From 2001, ○ University Hospital operated a blood without blood transfusion center and performed an operation by blood without blood. While the Defendant performed an operation by blood without blood, 10 times a monthly average, the Defendant did not have much experience of an operation by blood without blood transfusion.

(b) Whether there was a negligence by fault of determining that a surgery may be conducted by a without blood transfusion

In light of the following circumstances revealed from the above facts, i.e., △△ Hospital, △△ Hospital, and △△ University Hospital’s refusal to conduct a surgery on the deceased on the ground that it is dangerous for the deceased to do so, the deceased’s refusal to do so, the state of the son’s cryposis and its surrounding organization, the occurrence of mass transfusion after the mathing surgery, and the process of surgery up to the epochopic disorder, and the Defendant did not have different experience in the epochopic surgery from the epochopic surgery, the deceased’s epochopic surgery, and the epochopic epochopic epochopic epochopic epochopic epochopic epoch, and the body surrounding the epochopic epochopic epochopic epochic epoch. Therefore, it is necessary for the Defendant to examine whether he/she neglected the operation without any general experience on the deceased’s surgery.

① However, it cannot be readily concluded that such surgery was objectively impossible for the deceased solely on the ground that it was difficult for the deceased to conduct a non-blood surgery at the △ Hospital, △△ Hospital, and △△ University Hospital. ② The inquiry inquiry letter at the △△ Hospital cannot be deemed as follows: (a) even if the deceased is old, the right-hand high gate is destroyed, and the surrounding organization is serious, it is possible for the deceased to conduct a non-blood surgery; (b) the above hospital has such surgery; (c) there was a successful operation for the patient several times; (d) the degree of the fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s f.

C. Whether the illegality of the defendant's act of not giving blood transfusion is denied as an act with the consent of the victim

(1) Legal principles

(A) The Constitution is the highest ideology of the right to pursue human dignity, value, and happiness. The right to pursue human dignity, value, and happiness varies depending on their own values. The right to pursue human dignity, value, and happiness can only be realized when they can decide and act in accordance with their own values. Therefore, the right to self-determination should be guaranteed to the maximum extent as fundamental human rights for the realization of the right to pursue human dignity, value, and happiness. Since the standards, etc. for belief, values, religion, and happiness are different for each individual, the exercise of self-determination right based on one’s own belief, values, religion, and happiness should not be disregarded just because it is deemed that it is unreasonable in light of the majority’s position and objective view, even if it is considered that it is unreasonable. If there is a change in time and situation, the standards of rationality may change at any time, as well as the right to pursue self-determination as a human being, and therefore, it should not be objectively and objectively opposite to the other person’s right to self-determination right to self-determination.

One of the most important things among the self-determination is the right to self-determination on the life and body of any person. Any person must be able to decide on how to maintain and develop his/her life and body. Therefore, even if treatment is necessary for the protection of his/her life and body from a medical point of view, the State or a doctor may not compel a patient to provide treatment solely for such reason, and even after the conclusion of a medical contract, a patient may freely terminate a medical contract,

When a medical contract has been concluded between a patient and a doctor, the contents and scope of the medical treatment are comprehensively and abstract at the time of the contract due to the nature of the variable medical treatment that takes place in response to the progress of the disease and changes in the patient’s condition. However, given that the contents of the medical treatment provided following the confirmation of the disease, the patient’s condition and natural change, and the patient’s physical reaction by the medical treatment, the doctor has considerable discretion to choose the appropriate methods of medical treatment based on the patient’s health condition, etc. at the time, the level of medical treatment at the time, and his/her own knowledge and experience. However, in the case of performing the medical treatment that infringes on the patient’s body, such as surgery, the doctor shall explain the symptoms of the disease, the contents and necessity of the method of medical treatment, the anticipated risk of the occurrence, etc., and shall obtain consent to the medical treatment (see, e.g., Supreme Court en banc Decision 2009Da17471, May 21, 2009).

In this case, in a case where a patient selects one of the multiple methods of treatment chosen by taking into account the patient’s own condition, method of treatment, expected risks, etc. while having been sufficiently explained by the doctor, even if the method of treatment chosen by the patient is not considered the best method of treatment from the point of view of the doctor or the general public, or is deemed unreasonable from the point of view of the general public, the doctor should follow the patient’s decision, and should not provide the patient with any other method of treatment chosen by the patient on the ground of being consistent with the patient’s interest. As long as the patient has the right to self-determination on medical treatment, the discretionary power in the medical treatment

(B) Since the right to self-determination is a specific right, the right of others cannot be infringed, and there is an inherent limit that can be protected only to the extent that does not violate the constitutional order. Although the right to life is not explicitly provided in the Constitution, the right to life is a aggressive and natural legal right based on the nature and purpose of human life and functions as a premise of all fundamental rights as stipulated in the Constitution (see Constitutional Court Order 95HunBa1, Nov. 28, 1996). Even if the subject of right to life is the subject of right to life, the right to freely dispose of his/her life, such as the case of suicide, goes beyond the bounds of the right to self-determination under the Constitution and cannot be allowed as it goes against social norms. Accordingly, if a patient selects a specific method of treatment to intent to commit suicide, it goes against the constitutional order of protecting and respecting human life, and thus, it is a doctor that goes beyond the limits of right

However, if a patient selects a specific method of treatment for his/her own life or body, even if the method of treatment increases the risk of the patient's life, it shall not be evaluated equally with the case where the patient selects a specific method of treatment for the purpose of suicide, compared to other method of treatment that can be selected. In contrast to the latter’s choice of a specific method of treatment for the purpose of the death of the patient, the former is aimed at restoring the patient’s life and body, and the latter is able to take the risk of life that may arise in the course of treatment while choosing a method of treatment that does not go against the harm of his/her belief or religion.

Even if the patient’s method of treatment increases the risk of the patient’s life compared with other method of treatment chosen by the patient, such decision cannot be deemed to go against the highest ideology of the Constitution of the Republic of Korea, “the guarantee of dignity, value, and the right to pursue happiness as human beings,” insofar as it does not directly aim at the patient’s death. Even if the patient’s right to self-determination was not exercised in the direction of protecting the patient’s life in light of the doctor’s or the general public’s position, if such decision is based on the patient’s own belief or value, such decision cannot be deemed to go against the fundamental value of

However, in order to view the patient’s choice of the above treatment method as the exercise of the patient’s genuine right to self-determination, the patient with ability to make a decision should receive sufficient medical information from the doctor, and make a decision on specific treatment based on his/her own value.

(C) If a patient allows only blood transfusion with his/her own blood according to religious belief and values and selects without permission for blood transfusion from another person, i.e., without blood, even if such choice leads to risk of life, the patient’s decision may not be deemed to have exceeded the limits of the right to self-determination permitted under the Constitution. Whether to accept another person’s body is basically a matter of determination according to his/her own value or religious belief, and is not reasonable from the standpoint of the doctor or the general public, even if the decision to not blood transfusion is not reasonable, it cannot be deemed that the patient’s highest value of our Constitution, namely, realization of human dignity.

In a case where a patient with decision-making ability is provided with sufficient medical information on the contents that may cause mass transfusions in the course of a surgery, and in such a case, he/she may lose his/her life without blood transfusion, and where he/she decides to refuse blood transfusions by seriously judging based on his/her own religious belief, etc. based on his/her own medical information and to receive only blood transfusions, the patient’s decision should be respected, and thus, the doctor must comply with the patient’s decision. Therefore, in such a case, even if the patient’s intention occurred during the surgery and the patient attempted all other possible treatment methods except for blood transfusions according to the patient’s intention, but eventually, even if the patient’s death occurred, the doctor’s failure to obtain blood transfusions is dismissed as an act with the consent of the victim provided for in Article 24 of the Criminal Act.

(2) As to the instant case, even if there was negligence by the Defendant, such as the facts charged, and there was a causal relationship between the Defendant’s negligence and the deceased’s death, according to the aforementioned factual relations, the Deceased may die from mass transfusion in the event of an operation by direct blood transfusion from the doctor immediately before the operation, and the Deceased shall be deemed to have refused to give blood transfusion and decided to receive only blood transfusion after being provided with sufficient medical information on the risk of the operation, etc., based on his religious belief. Thus, the Defendant’s act of not giving blood transfusion by respecting the decision of the Deceased constitutes an act with the consent of the victim under Article 24 of the Criminal Act, and thus, the act of the Defendant does not constitute a crime with the consent of the victim.

4. Judgment of the court below

(a) Fact-finding;

(1) In light of the above, the court below recognized the facts as seen above by comprehensively taking account of the evidence duly adopted and examined, and the records of this case are examined in detail, the court below's findings of fact is reasonable, but it is also decided to change and add the following parts of (b) the progress of the surgery:

(2) Progress of the operation

(D) Nonindicted 3, who heard the foregoing horses and returned to an operating room, and told the Defendant that there are a number of protectors, and among them, several persons would be to give blood transfusion and that several persons should not give blood transfusion. Prior to the instant operation, Nonindicted 3 was unable to deliver to the Defendant who requested blood transfusion in detail since he did not have any satched family members of the victim, and who refused blood transfusion.

(E) The Defendant was not clearly aware of his family’s intent (in particular, the Defendant appears to have been in favor of the husband of the victim), and did not decide whether to give the victim a free blood transfusion. In other words, the Defendant requested the Negotiation Committee on “Fhovah’s Witness” that the victim believed through medical personnel to give advice on the instant case, but did not receive any particular reply in relation thereto.

(F) While doing so, the victim’s blood transfusion continued, and the Defendant discontinued the surgery, and moved the victim to a middle-patient’s room at around 14:50. After that, the husband of the victim consented to the blood transfusion, and all of the deceased’s family members wished to obtain the blood transfusion, and written up a letter related thereto and submitted it to ○○ University Hospital. However, at the time, the victim was likely to deteriorate the symptoms of the blood transfusion and the blood transfusion in a state where the victim was suffering from pulmonary blood transfusion and the panscular disorder, and thus, the victim did not perform the blood transfusion on the part of the hospital.

(G) At around 21:35, the victim died of a large quantity of blood transfusion in the patient room at the hospital.

(b) Whether there was negligence in determining that a surgery may be conducted by means of a blood free blood transfusion

The finding of guilt in a criminal trial ought to be based on evidence with probative value that leads a judge to have a conviction that the facts charged are true beyond reasonable doubt. Thus, if there is no such evidence, even if there is doubt as to the defendant's guilt, it cannot be determined with the benefit of the defendant (see Supreme Court Decision 2002Do6110, Feb. 11, 2003, etc.).

In light of the following facts: (a) as the court below mentioned properly, the Defendant was expected to have a significant blood transfusion in this case; (b) the victim was requested to perform a surgery without blood; (c) the victim refused to perform the surgery on the ground of the risk; (d) a large quantity of blood transfusion occurred in the actual process of the surgery; and (e) the victim died; and (e) the Defendant did not have much experience in the human-free surgery by blood transfusion; and (e) the Defendant was able to do so.

However, in addition to the circumstances mentioned in the court below, the following circumstances acknowledged by the records of this case are as follows: ① the defendant has been administered not less than 10 times a month in a usual method; ② the defendant has extensive experience in surgery by various without blood transfusion; ② there is no difference from the ordinary blood transfusion surgery; ③ there is a case where there is multiple successful surgery by blood free surgery in Korea, ③ the quantity of blood free surgery during the surgery is big depending on each patient; ③ it is difficult for the defendant to find that there is no precision method to predict exactly before the surgery; ② it is difficult for the defendant to find that there is no possibility that the defendant could have performed the surgery at a university or college to find it possible for him to have determined whether he could have performed the surgery at a reasonable level, ④ it is difficult for him to view that there is no possibility that the defendant could have performed the surgery at a university or college to have performed the surgery at a different level, ④ it is difficult for him to view that there is no possibility that he could have performed the surgery at a reasonable level in light of the evidence that he performed at a university or college.

Therefore, prosecutor's assertion on this is without merit.

C. Whether the illegality of the defendant's non-blood act is excluded as an act with the consent of the victim or a legitimate act

(1) As seen above, the court below held in detail the dignity and value of human beings and the right to self-determination derived from the right to pursue happiness, which is the highest principle of the Constitution, and especially the right to self-determination on the life and body, and the major legal principles are to invoke the contents of the judgment below, but to add the following contents.

(2) Relationship between the patient’s right to self-determination and the doctor’s duty to treat (State’s duty to protect the right to life)

Although the patient's right to self-determination on medical practice has an inherent limitation that can be protected only to the extent that does not violate the constitutional order like other fundamental rights, since the exercise of self-determination is one of the highest rights guaranteed by the Constitution, so long as the exercise of self-determination clearly infringes on another person's right, and does not dispose of one's own life, the exercise of self-determination right should be guaranteed to the maximum extent, and the limitation on the exercise of the patient's right to self-determination should be very strict. Furthermore, if the exercise of the patient's right to self-determination directly conflicts with the doctor's general duty, i.e., the duty to seek the patient's life on the basis of the State's duty to protect the right to life, it should be guaranteed to a higher level than

Therefore, even if the patient did not choose more objective and safe methods of treatment as the patient's right to life and happiness, regardless of the optimal level of treatment, the patient's choice of treatment cannot be limited to the act of emphasizing his/her right to life or wrong judgment. If the patient's general duties are superior to the patient's right to self-determination, this would result in serious infringement upon the patient's right to self-determination or right to pursue happiness under the Constitution by subjecting the individual from a guardianship perspective.

(3) Validity of exercising the right to self-determination and requirements for valid acceptance under the Criminal Act

A decision on the treatment method selected by a patient on the basis of the right to self-determination should be strictly protected, and is very continuous, so medical professionals and family members of the patient who are not the patient cannot arbitrarily change the treatment method prior to or during the treatment solely on the ground that there is more appropriate and safe treatment method than the treatment method determined by the patient, and such principle cannot be changed even if the patient’s death risk increases during the procedure.

If a doctor's act of surgery is accompanied by an injury to the body of a patient, and if a serious result occurs that does not want to be caused by a failure of the surgery, the establishment of the crime of injury or negligence can be at issue. However, if the above operation is based on the patient's consent, and if the patient's consent is recognized as the form of self-determination recognized under the Constitution, the doctor's act of surgery should be dismissed in accordance with Article 24 of the Criminal Act.

However, the patient's decision-making ability, the patient's proper explanation obligation (the patient or his/her legal representative explain the patient's symptoms, treatment method and necessity, anticipated risk, etc. in light of the current medical level and make the patient choose whether to receive the medical treatment or not by sufficiently comparing the necessity or risk of the patient's treatment with the patient in question: the patient's voluntary and serious decision-making requirement under Article 24 of the Criminal Act is valid only if the patient's voluntary and serious decision-making requirement is met.

(4) If an unforeseen circumstance occurs.

On the other hand, the above principle can be applied to cases where the treatment method is determined by taking into account the number of cases where a patient is able to occur in the course of treatment and the risks therefrom. Thus, in cases where a patient or a medical personnel takes full account of sufficient consideration but an unexpected situation occurs, it is difficult to apply the above principle as it is. In other words, operation for treatment consists of complicated and continuous processes, unlike mere bodily injury, so that unexpected situations may occur in the process. In such cases, if a patient has a consciousness, it is the most ideal to ascertain the patient’s intention again and determine the treatment method by objectively identifying the patient’s presumed intention if there is no consciousness for the patient.

However, in reality, considering the patient's various objective circumstances in an imminent situation where there is no awareness of the patient, it seems almost impossible to grasp the patient's presumed intention (in light of the result of the patient's choice of such treatment method and the religious faith that the patient tried to observe in the process, what choice the patient would make in an unexpected situation) and to select the treatment method accordingly.

Therefore, within the scope of immediate confirmation at time, location, method, etc., the patient’s family members, relatives, etc. should be confirmed and considered (it cannot be disregarded at all in our reality where family tradition and culture are inter-regionalized). If a patient expresses in advance his/her intention in advance, the method of operation or treatment should be determined by selecting and treating a method close to the patient’s chosen method of medical treatment or excluding a specific method of treatment depending on the patient’s intent.

Ultimately, if the treatment of a medical personnel is determined or omitted in accordance with the above process, the treatment of the patient is medically achieved, but the treatment method is likely to go against the patient’s religious belief, etc. or, contrary thereto, the medical personnel attempted to provide the treatment, but the treatment results in serious post-treatment or death of the patient, such treatment of the medical personnel shall be dismissed as a justifiable act provided for in Article 20 of the Criminal Act.

(5) Whether it falls under Article 24 of the Criminal Act (the consent of the victim)

On the premise of these legal principles, the Defendant’s failure to give other blood transfusion can be assessed by negligence as stated in the facts charged. Even if the victim died, the above recognized facts and the records of this case, namely, ① the victim’s “myh’s witness” clearly refused to give other person’s blood transfusion according to his religious belief. ② The victim wanted to receive a son’s dysium because he had long received dysium and sysium surgery, and had experienced considerable pain in daily life. ③ Even if ○○ University Hospital did not have received a dysium surgery, it is difficult to view that the victim was unable to receive a dysium due to her religious belief or sysium surgery in light of the fact that she had received a dysium surgery in the process of performing the surgery. ④ It is difficult to view the victim’s dysium or sysium surgery in the process of performing the surgery as being highly likely to have received a dysium surgery in the process of performing the surgery.

(6) Whether it falls under Article 20 of the Criminal Act (Justifiable act)

Furthermore, even if the above mass, sudden blood transfusion, and its response disorder are not the premise for the above consent, it is deemed that there was no awareness of the victim at the time of the occurrence of the situation, and the defendant basically asked the bereaved family's intention on the withdrawal of consent (e.g., withdrawal of surgery that excludes the other blood transfusion) without escaping from the framework that respects the original victim's will. The defendant and other medical personnel confirmed the will of the bereaved family outside the operating room to find out the victim's genuine presumed intention, but did not obtain uniform consent from the bereaved family, and thus, they did not respond to the request from the committee for negotiations of women and witnesses, but did not receive any reply. After that, if the bereaved family brought a uniform intention that the bereaved family would harm the other blood transfusion, the defendant's act that the above medical personnel did not make a blood transfusion is not unlawful under Article 20 of the Criminal Act.

5. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Jong-sung (Presiding Judge)

1) participate in the conduct of blood by responding to blood.

2) Blood recovery devices to recover blood from the actual patients;

3) At the time of mass transfusions or when low-blood shocks are work, they shall be used as blood substitutes.