[1] In a case where a patient dies or is highly likely to die due to suspension of treatment, whether the right to choose the suspension of treatment from the right to self-determination based on the right to life under the Constitution is derived (negative)

[2] The elements to be considered in estimating the genuine intent of the suspension of treatment for an unidentified patient

[3] The case dismissing the patient's explicit or presumed intention as to the discontinuance of treatment in case where the family member applied for a provisional disposition seeking discontinuance of life-sustaining treatment with no possibility of recovery from the patient, or where the patient's family member applied for a provisional disposition with respect to the patient who had attached an artificial smoking machine in the so-called "vesary condition" and received treatment with anti-biological medication, etc.

[1] Since the medical practice begins and ends by consent of the patient's right to self-determination, it is unnecessary to maintain the medical practice as a matter of principle if the patient does not want to continue the medical practice on the basis of his/her right to self-determination. However, since the right to life is an absolute fundamental right that refers to the foundation of human dignity and cannot be waived in light of the constitutional spirit that respects human dignity and guarantees the right to life, the patient's right to self-determination and the right to decide on the commencement and termination of the medical practice and the right to choose the method of treatment can be acknowledged in the medical practice. However, even if the patient's right to self-determination and the right to choose the method of treatment can not be seen as being granted in cases where the patient's right to self-determination is already in progress unless the treatment is continued, it is expected that the patient's health will be recovered or that the patient's condition would be aggravated at a considerably high level without danger, it can not be seen that the right to self-determination can be determined by the Constitution in light of the right to self-determination and the patient's right to life.

[2] Where a patient is in an unidentified state and there is no express expression of his/her intention to discontinue treatment, or where it is impossible to express his/her intention, the patient’s genuine will may be presumed by taking into account the patient’s attitude on his/her birth, religious faith, and personal values, but at this time, the term “presumptive intention” refers to a specific intent in a specific situation, not a general or abstract intent. Meanwhile, in estimating the patient’s genuine will, in accordance with the patient’s individual judgment criteria or idea, it shall not be a mistake that leads to without permission to conceal the patient’s own intention or presumption the patient’s will to the neighboring persons, such as the patient’s family member, who is not the patient’s own will. Accordingly, the patient’s possibility of recovering consciousness, the patient’s situation, the patient’s symptoms where the treatment is continued, the patient’s pain to receive, and the latter legacy should also be presumed carefully from an objective point of view.

[3] The case dismissing an application for provisional disposition on the ground that there is no possibility of recovery of the patient's consciousness or medical treatment of the patient, or there is no medical meaning of the patient's explicit or presumed intention for suspension of medical treatment, in case where the family of the patient applied for provisional disposition seeking suspension of life-sustaining treatment with respect to the patient who had been under treatment, such as artificial absorption in the so-called "vesary condition" and being equipped with an anti-biological medication, the patient's family members can voluntarily see the patient's explicit or presumed intention for suspension of medical treatment

[1] Article 300 (2) of the Civil Execution Act / [2] Article 300 (2) of the Civil Execution Act / [3] Article 300 (2) of the Civil Execution Act

Creditor 1 and four others (Attorney Shin Jae-ho, Counsel for the plaintiff-appellant)

[Defendant-Appellee] One other (Attorney Shin Dong-dong et al., Counsel for defendant-appellee)

1. The obligees' primary and conjunctive claims are all dismissed;

2. The costs of lawsuit shall be borne by the obligees.

In the first place, the debtor shall not provide the creditor 1 with all life-sustaining treatments, such as the application of artificial smoking apparatus, medication, supply of nutrition and water. In the event that the creditor 1 has reached a heart stop, emergency cardiopulmonary resuscitation shall not be conducted, and the creditor 2, the creditor 3, the creditor 4, and the creditor 5 shall not refuse or interfere with the patient 2, the creditor 3, the creditor 4, and the creditor 5's request for discontinuance of life-sustaining treatment, and the execution officer shall publicly announce the purport of the above order in an appropriate manner, and if the debtor violates the above order, the execution officer shall pay 1,00

Preliminaryly, the debtor shall not obstruct the discharge by the creditor 1, and the enforcement officer shall publicly notify the purport of the above order in an appropriate manner, and where the debtor violates the above order, he shall pay 1,00,000 won to the creditors for each violation.

1. Basic facts

According to the records of this case and the purport of the whole examination, the following facts are substantiated:

A. Status of the parties

(1) The obligee 1 is a patient under medical treatment by suffering from brain damage caused by low birth, and is being treated by the obligee 2, obligee 3, obligee 4, and obligee 5 (hereinafter “the obligee 5”) as the obligee 1.

(2) The debtor school juristic person is an educational foundation operating the instant hospital, and the debtor 2 is an obligee 1 as a medical specialist within the respiratory part of the instant hospital.

B. The treatment of this case and the status of the patient (creditor 1)

(1) In order to confirm the occurrence of waste cancer on February 18, 2008, creditors 1 suffered brain damage caused by low oxygen damage due to excessive transfusions, etc. while undergoing an examination of pulmonary tissue using an institutional diameter at the instant hospital.

(2) Accordingly, from February 18, 2008, creditor 1 was hospitalized in a middle-patient room of the instant hospital and under treatment, such as antibiotic medication, artificial nutrition supply, and water supply, etc. (hereinafter “instant treatment”).

(3) At present, creditor 1 is so-called so-called "vegetable reaction" to the extent that he voluntarily embnoral reactions to the extent that he does not carry out the arms without any specific purpose and purpose, but there is no abnormal reaction and language reaction to the same ball and the respective embnoral reaction.

2. Creditors' assertion

The obligees asserts that the treatment of this case where the creditor 1's consciousness, etc. is irrecoverable does not enhance the creditor 1's health, but merely extends only the life signs. It is medically meaningful. The creditor 1 can decide to suspend the treatment on the basis of the right to self-determination derived from the dignity, value, and right to life guaranteed by the Constitution. Thus, the creditor 1 want to refuse to extend the life without doubt and naturally die, so the creditor 1's intention to suspend the treatment of this case can be acknowledged.

In addition, even if the obligees cannot recognize the obligee 1's intention of suspending the treatment of this case, the remaining obligees' rights and interests as family members should also be considered in relation to the obligee 1's treatment. The continuation of the treatment of this case causes a large economic and mental pain to the remaining obligees, and it infringes upon the dignity and value of human beings, the right to pursue happiness, the right to equality, the right to freedom of conscience, the right to health, the right to property rights, etc., and thus, the remaining obligees have the right to seek the suspension of the treatment of this case independently against the obligor. In addition, the obligees seek to prevent the obligee 1 from having the right to seek the suspension of the treatment of this case against the obligor.

3. Nature of the provisional disposition of this case

In order to facilitate the execution of judgment on the merits of a lawsuit, or prevent damage until a final and conclusive judgment is rendered, the preservation lawsuit, such as a dint, provisional attachment, and provisional disposition, is a judgment that temporarily combines the current state or forms a temporary legal relationship.

Among them, a provisional disposition to determine a temporary position as stipulated in Article 300(2) of the Civil Execution Act exists in the disputed relation relation or legal relation, and if the progress of the phenomenon is left alone until there is a final judgment thereon, it may cause serious damage or imminent danger to the right holder if it is left alone, and even if a future final judgment is obtained, it is a provisional disposition to grant a temporary position to the right holder and avoid such damage or danger if it is likely that the effectiveness would be lost even if it is obtained, and it is a provisional disposition to be allowed only when the right holder of the provisional disposition grants a temporary position in the case where there is other necessary reasons to avoid the present significant damage or prevent imminent danger until the legal relationship is finalized by the lawsuit on the merits. Whether such provisional disposition is necessary or not shall be determined in a consistent manner by the court's discretion, taking into account the relation with the understanding of the application in question, the anticipated failure in the future in the lawsuit on the merits,

Furthermore, in the case of the so-called satisfactory provisional disposition which forms the same legal relationship as the content of the case to be sought through the judgment on the merits as in the case of the provisional disposition in this case, since the right of the creditor of the provisional disposition prior to the judgment on the merits becomes the same result as that of obtaining a final satisfaction, it is required to provide more careful proof as to the right of the creditor of the provisional disposition in this case and the necessity of preservation. Furthermore, in the case of the provisional disposition in this case, prior to the final judgment on the merits, the treatment in this case may be discontinued before the judgment on the merits became final and conclusive, and as a result, the risk of the creditor 1's life is reduced or the creditor 1's death may occur, and it shall be more careful in recognizing the necessity of such a provisional disposition in light of the fact that it is impossible to recover smoothly and that the court might cause the result of restricting the right

4. Judgment as to the main application

(a) The patient's right to self-determination in medical practice;

Since the medical practice begins and terminates by the patient's consent according to the patient's right to self-determination, the patient's right to self-determination should be respected to the maximum extent in the medical practice, and if the patient does not want to continue the medical practice on the basis of his/her right to self-determination, the medical practice

However, the right to life is an absolute fundamental right that means the foundation of human dignity, and it is a legal interest that cannot be waived in light of the constitutional spirit that respects human dignity and guarantees the right to life. Thus, even if a patient's right to self-determination, i.e., the patient's right to self-determination of self-determination of medical practice, and the right to choose treatment methods, is acknowledged, in medical practice, the patient's right to self-determination of medical practice is discontinued, which is already underway. If treatment is not continued, the patient's health is delayed or the patient's condition is anticipated to worsen to the degree that there is no risk of life, and if the patient's death or the patient's right to self-determination is considerably high, the recognition of such right to self-determination can be the same as the right to waive or dispose of the patient's life. In light of the principle of absolute life protection guaranteed by the Constitution, even in such cases, the patient's right to self-determination of medical practice cannot be deemed unlimited

Therefore, the requirements and implementation methods for the suspension of treatment for patients are strictly stipulated through statutes, etc., and the right to choose the suspension of treatment from self-determination based on the right to life under the Constitution cannot be directly derived even in cases where the suspension of treatment is highly likely to cause death of a patient or a patient's life.

In addition, in light of the traditional ideas of our society, it is difficult to see that there is social consensus or approval on whether to grant the right to self-determination to suspend treatment, which is bound to cause the choice of death or the reduction of life, and in addition, in light of the criminal law that punishs murder and suicide by commission and consent, or the legislative purport of the current law, such as the Emergency Medical Service Act that imposes on emergency medical personnel the duty of emergency medical treatment as an emergency medical treatment for an emergency patient and the Emergency Medical Service Act that prevents the patient from refusing or suspending it without justifiable cause, and the Act on Organ Transplant, etc. that prevents the patient from withdrawing the organ even if he/she consents, the materials submitted by the creditors alone cannot be acknowledged as the obligees' assertion that the suspension of treatment of this case should be allowed.

Even if it is clear that the patient has no possibility to recover, the time of death is imminent, and there is no medically meaningful meaning of treatment for the patient, and in special circumstances where the patient himself/herself needs to exercise his/her right to self-determination, clearly and clearly as the exercise of his/her right to self-determination, the requirements for suspension of treatment should be strictly interpreted, and then, the following should be examined as to whether the creditor 1 has no possibility to recover and there is no medical significance in the treatment of this case, and whether it is possible to confirm the creditor 1's serious and clear intention with respect to the suspension of treatment of this case as alleged by the creditor.

B. Whether the creditor 1 has no possibility to recover, and whether the instant treatment is an unqualified treatment

The obligees seek provisional disposition of this case by asserting that the creditor 1's consciousness, etc. is not likely to be recovered and that the treatment of this case is medically meaningful.

Therefore, as seen earlier, the creditor 1 is so-called "vegetable condition". However, considering the possibility of advancement of medical technology, even if a patient is in a state of vegetable life, it is difficult to readily conclude that the patient is in a state of vegetable life without any possibility of recovery, or the current treatment merely extends the patient's life and without any medical meaning. In specific circumstances, it should be determined by comprehensively considering the patient's condition, treatment method, towing, post-post, legacy, etc. In light of the expertise of medical practice, it can be the basis for medical specialists to determine whether it is difficult for the patient to recover or whether the patient is in a state of vegetable condition, and whether the treatment method for the patient is appropriate.

In the instant case, there is no evidence to acknowledge the circumstances, such as that the debtor 2, who is a doctor of creditor 1, or another doctor who can make an objective judgment, is objectively impossible to recover the situation of creditor 1, or that the treatment of this case cannot be ultimately achieved, and that the discontinuance of the treatment of this case is a more appropriate treatment method against creditor 1. Rather, as the debtor 2, including creditor 1’s principal debtor 2, who is the debtor 1’s principal debtor, is likely to return to the consciousness of creditor 1, even if the plant condition continues for 3 months to 3 months or 6 months, there is a possibility that the consciousness may be returned to the creditor 1. If the treatment of this case is continued, it is presumed that the creditor 1 would be able to survive for 12 months or 29 months, and thus, it is not necessary to continue the treatment of this case, asserting that the death is not imminent.

In full view of these circumstances, the obligee 1 is only able to voluntarily gregnent or abnormal regrative reaction to the extent that the obligee 1 gregnites, and there is no reflect response and verbal reaction to the gregnite and gregnites, etc., the mere fact that the obligee 1 does not have any possibility of recovering the obligee 1’s consciousness, etc., and there is no evidence to acknowledge it otherwise.

C. Whether the obligee 1 had the intention to discontinue the instant treatment

(1) Whether there is an explicit intention

However, in principle, the patient's intention to discontinue the treatment should be explicitly expressed at the time of suspending the treatment. However, the creditor 1 cannot express his/her intention to discontinue the treatment of this case while continuing the application for provisional disposition of this case seeking the suspension of treatment of this case.

On the other hand, the obligees, who are the children of the obligees 1, are suffering from economic and mental pain due to the instant treatment, and infringement of human dignity and value, the right to pursue happiness, the right to equality, the right to freedom of conscience, the right to health, and property rights. Thus, the obligees have the right to demand the discontinuation of the instant treatment independently against the debtors, and even if it is impossible to recognize the obligee 1's explicit intention regarding the interruption of the instant treatment, the obligees claim that the instant treatment should be discontinued as long as the rest of the obligees demand the suspension of treatment.

However, even if a family member is a family member, it cannot be recognized that the right to substitute the decision of discontinuance of treatment that can reduce another person's life can not be recognized, but it can be recognized as the patient's own intention only when the patient's own will can be recognized as being consistent with the patient's serious will (in such a case, it shall be strictly and carefully determined as to whether the patient's own will can be recognized as being consistent with the patient's serious will, and the remaining creditors' will in this case cannot be readily determined as being consistent with the creditor's 1's own will.

In addition, even though the remaining creditors are suffering from economic and mental pain due to the instant treatment against creditors 1, there is a need to reduce such pain through other social security devices, including medical security, it is difficult to compare and balance the legal interests such as human dignity and value, the right to pursue happiness, the right to equality, the right to freedom of conscience, the right to health, property rights, etc., as alleged by the remaining creditors being infringed with the right to life of creditors.

Therefore, as alleged by the obligees, the remaining obligees may express their intent of suspension of treatment on behalf of the obligees 1, or the remaining obligees may not be viewed as having independent rights to demand suspension of treatment of this case. However, the remaining obligees' will, which are the obligees 1' family members, can only be considered as being the object of consideration in estimating the presumed intention of the obligees 1.

(2) Whether a presumption of intention exists

As in the instant case, in a case where there is no explicit declaration of the discontinuance of treatment or it is impossible to express such intention due to the patient’s unknown condition, the patient’s genuine will may be presumed by taking into account the patient’s attitude, religious faith, personal values, etc. However, “presumed intention” in this case is not a general or abstract intention, but a specific and definite intention in a specific situation.

On the other hand, in estimating the true will of the patient as above, the patient's family's intention should not be inferred regardless of the patient's genuine will, in accordance with the patient's personal judgment criteria or thoughts, or it should not be found that the patient's family members, who are not the patient's own will, have recklessly committed an error in estimating the patient's will. Thus, the patient's possibility of recovering consciousness, changes in the patient's condition if the treatment is continued, the patient's symptoms that the patient will receive, and the aftermath, should also be carefully and carefully

However, there is no evidence that the obligee 1 expressed in advance the obligee’s intent to suspend the treatment of the same kind as the instant medical treatment by means of a written document, and the obligee’s explanation materials (Evidence 1-5, No. 6) submitted by the obligee (Evidence 1-1-5, No. 6) have expressed in advance the obligee 1’s remaining creditors the obligee’s oral expression in advance, “I am humbry hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum humb hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum hum h hum h humh h.).

In addition, the patient's right to self-determination refers to the right to choose or refuse medical practice based on free will in a situation where the patient has easily explained from the doctor who is a medical expert and has been provided with sufficient information. There is no evidence suggesting that the creditor 1 expressed his/her intention to refuse life-sustaining treatment by machinery, etc. when he/she accurately obtained sufficient information from the doctor about the state of disease, treatment method, treatment effect, etc., or that he/she decided to suspend medical treatment even when he/she obtained sufficient information from the doctor and correctly perceived such information.

In full view of the above circumstances, it is insufficient for the obligee 1 to presume the obligee 1’s intention to refuse the instant treatment or to recognize the remaining obligees’ intention in accord with the obligee 1’s intention, and there is no other evidence to acknowledge it differently, such as the obligee’s refusal to do so, that the obligee 1 is a divesian, and the husband died, opposed to the extension of the life through artificial organ renovation when the husband died, and that he did not refuse to do so.

(d) Conclusion

Therefore, in principle, the obligee 1 has the right to self-determination on medical practice. However, if the treatment of this case is discontinued, the obligee 1's life is reduced as a result. Thus, even if the right to self-determination is based on the right to self-determination, unless there is any legal basis for whether to permit the suspension of medical treatment, requirements for permission, method, control, etc., the obligee 1 cannot immediately recognize the right to choose the suspension of medical treatment of this case. Thus, the obligee's assertion is without merit

In the event that strict requirements are met, even if the discontinuance of the instant medical treatment can be exceptionally acknowledged, the obligee 1’s intent to discontinue the instant medical treatment is not recognized, there is no objective data to acknowledge that the obligee 1’s consciousness, etc. is not likely to be recovered or that the instant medical treatment is not medically meaningful. Moreover, the obligee’s approval, etc. was not granted by the Ethics Committee of the instant hospital as a procedure for suspending the instant medical treatment (the obligee’s request for suspension or discharge to the Ethics Committee of the instant hospital as a procedure for suspending or discharging the instant medical treatment, or dispute as to the legitimacy of the decision by the Ethics Committee of the hospital), and the obligee’s assertion of the obligee’s right to seek discontinuance of the instant medical treatment does not appear to have any grounds.

5. Determination on the conjunctive application

The obligees seek, in advance, that the obligees should not prevent the obligees 1 from releasing from the hospital of this case.

The right to choose a medical institution is also recognized for patients and their families, and the right to terminate the medical treatment contract at the time they want to do so by their own decision-making.

However, in the instant case, the discharge and suspension of treatment are in fact combined with a single factual relation. In full view of the records and the purport of the whole examination of the case, the obligees' assertion does not intend to continue to provide treatment at a medical institution or a house, etc. other than the instant hospital, but rather, to discharge creditors 1 from the instant hospital, and to extend the life artificially as in the instant medical treatment. In light of this, the obligees' claim in the instant preliminary petition is not merely seeking a prohibition of interference with the obligee 1 to discharge the obligor from the hospital in the instant case, but also seeking a prohibition of interference with the obligee 1 to artificially extend his life, such as the instant medical treatment, and thus, it does not coincide with the obligee's primary claim for discontinuance of the instant medical treatment.

If so, as seen earlier, the obligee 1’s right to self-determination is limited with respect to the suspension of treatment of this case as well as the obligee 1’s explicit or presumed intent with respect to the suspension of treatment of this case cannot be confirmed, and as long as there is insufficient data to recognize that the obligee 1 is unlikely to recover or that the treatment of this case is medically unreasonable, the obligee’s preliminary application cannot be accepted.

6. Determination as to the existence of necessity for conservation

In the case of the provisional disposition of this case, in light of the fact that the treatment of this case is discontinued before the judgment on the merits becomes final and conclusive, and that the damage cannot be recovered smoothly, such as the creditor 1's life may be threatened, etc., the necessity of provisional disposition should be carefully recognized.

However, as seen earlier, as well as the lack of vindication of the right to be preserved for the provisional disposition of this case, and as long as the debtor claims that it is necessary to continue the treatment of this case since he could return to creditor 1 and that his death is not imminent, the circumstance indicated in the record of this case alone is insufficient to vindicate the necessity of preserving the order of provisional disposition of this case before the confirmation of the relation between the parties to this case and there is no other evidence to acknowledge this differently.

7. Conclusion

Therefore, the obligees' motion for provisional disposition of this case is not sufficient to vindicate the right to preserve and the necessity of preservation, so it is dismissed as per Disposition.

Judges Kim number (Presiding Justice) (Presiding Justice)