[1] Where a person with parental authority does not exist or a person with parental authority refuses urgent and essential medical treatment by abusing parental authority, whether a medical person can estimate his/her intent to conduct medical treatment by a child without mental capacity and conduct necessary medical treatment (affirmative)

[2] In a case where a parent refused blood transfusions accompanying the surgery of a newborn baby on the basis of his/her religious faith, the case holding that the refusal of blood transfusions cannot be recognized as effective, on the grounds that the need to conduct surgery is urgent and urgent, and the hospital may seek the exclusion of interference with such medical treatment where a person with parental authority does not consent thereto

[1] Although a newborn baby has the right to self-determination, there is no ability to decide whether to undergo the medical treatment at issue and express such intent. In such a case, the consent of the person with parental authority is derived from one’s own parental authority, not by exercising the right to self-determination of the child, considering that the right to self-determination of the child has an exclusive character. Article 912 of the Civil Act provides that “The welfare of the child shall be given priority to exercising the right to self-determination.” Article 913 of the Civil Act provides that “The person with parental authority has the right to protect and culture the child,” and Article 913 of the Civil Act provides that “The person with parental authority shall have the right to protect and culture the child.” Therefore, the person with parental authority is not in accordance with the maintenance of the life and body of the child and the development of the person with parental authority, but shall not be respected, and it shall not be deemed that the person with parental authority has an essential capacity to perform medical treatment in light of the objective and rational nature of the person with parental authority to refuse such medical treatment.

[2] In a case where parents refused blood transfusions accompanying the surgery of a newborn baby based on their religious faith, the case holding that, even though the most appropriate and essential treatment method to maintain the life of the above patient is an operation accompanying the blood transfusion, the act of refusing the blood transfusions is beyond the scope of the exercise of legitimate parental authority in light of the purport of designating the parent as the person with parental authority of their children and the standards for exercising parental authority, so the refusal of the blood transfusions cannot be recognized as valid, and the hospital's side can seek the exclusion of interference with such medical treatment if the person with parental authority does not consent thereto.

[1] Article 10 of the Constitution; Articles 912 and 913 of the Civil Act / [2] Articles 10 and 20(1) of the Constitution of the Republic of Korea; Articles 912 and 913 of the Civil Act; Article 300(2) of the Civil Execution Act

Asan Social Welfare Foundation (Attorneys Shin Jae-ho et al., Counsel for the defendant-appellant)

The debtor 1 and one other

1. The debtors shall not interfere with blood transfusion conducted for life by persons other than the applicant (resident number omitted and address omitted) at the Seoul Asan Hospital under the obligee's control;

2. The remaining motion of the obligee is dismissed;

3. The costs of lawsuit shall be borne by each person;

The purport of seeking the public disclosure of the order under Paragraph (1) of this Article and Paragraph (1) of this Article.

1. Facts of recognition;

According to the purport of the entire record and examination, the following facts are substantiated:

A. On September 6, 2010, a debtor’s wife, outside of the Republic of Korea, was diagnosed on the ship of the Maternal Maternal Maternal Maternal Maternal Maternal Maternal Maternal Maternal Maternal Maternal Maternal (hereinafter “creditor’s Maternal Maternal Maternal Maternal Matern), and was diagnosed as a serious loss in the heart, and

B. On September 24, 2010, the creditor hospital first performed booming booming against the applicant outside the hospital, but in order to completely treat the heart disease of the applicant outside the hospital, the creditor hospital needs to perform a dial operation, which is a heart correction surgery (hereinafter “instant operation”).

C. The instant surgery is carried out through three stages by means of an operation generally carried out with respect to the heart type in the form of a single core room, such as the applicant for the instant surgery. The obligee hospital estimates the possibility of recovery of the applicant for the instant surgery at 30% or 50% when performing the first-stage operation that is essential for blood transfusion during the instant surgery. If the first-stage operation is successful, it is possible to perform the remainder without blood transfusion if it faces a little risk.

D. Although the first stage operation can be conducted by blood without blood, the creditor hospital is expected to be less than 5% of the recovery in the event that a bloodless surgery is performed in light of the body of the applicant, blood volume, and present symptoms. In the absence of the instant operation, the expected life period for the applicant outside the application is expected to extend from 3 months to 6 months, but it is highly likely that an emergency situation may cause death prior to the expected life period is likely to occur.

E. In order to implement the instant surgery, the obligee hospital explained and consented to the obligor’s symptoms, the content and necessity of the treatment method, the anticipated risks of occurrence, etc., but the obligor expressed his/her intent to refuse the instant transfusion to the applicant Nonparty based on his/her religious belief that prohibits the blood transfusion as a “novah’s Witness.” The obligee held an ethics committee to explain the necessity of blood transfusion in the instant surgery and the instant surgery, and again sought the obligor’s consent, but the obligor still rejected it.

2. Determination:

(a) Consent to the patient's right to self-determination and treatment;

In cases where a medical person conducts medical treatment, he/she shall explain matters deemed reasonable in light of the current medical level, and require the patient concerned to choose whether to undergo such medical treatment by sufficiently comparing the necessity or risk of the patient. In such cases, the patient’s consent is to guarantee an individual’s personality right and the right to self-determination protected by the right to pursue happiness as stipulated under Article 10 of the Constitution, and thus, in principle, to decide on how the patient maintains his/her life and body function and select the medical treatment (see Supreme Court en banc Decision 2009Da17417, May 21, 2009).

However, a newborn baby, such as an applicant, has the right to self-determination, but has no ability to decide whether to undergo the at issue and express such intent. In such a case, a person with parental authority gives consent to medical treatment on behalf of a child. Considering that the consent of a person with parental authority has the nature of the right to self-determination on behalf of the child, it is reasonable to view that the consent of a person with parental authority is derived from his/her parental authority rather than

Article 912 of the Civil Act provides that “The welfare of a child shall be given priority to the exercise of parental authority,” and Article 913 of the Civil Act provides that “the welfare of a child shall be the basis for the exercise of parental authority.” As such, the parental authority has the nature of the right and duty of a person with parental authority to realize the welfare of a child through raising, protecting, and taking care of, protecting, and taking care of, the child. Therefore, if the exercise of parental authority is not consistent with the maintenance and development of the child’s life and body, the exercise of parental authority shall not be respected, and it is evident in light of the fact that the Civil Act permits the loss of parental authority.

In addition, in cases where the medical treatment for a child with no mental capacity is urgently and inevitably conducted, or where a person with parental authority refuses such medical treatment by abusing his/her parental authority, the medical personnel can exceptionally conduct necessary medical treatment only to the extent limited and essential by estimating the intention of the medical treatment for a child with no mental capacity based on objective and reasonable data.

B. Determination on the instant case

According to the facts acknowledged earlier, if the instant surgery has not been performed or if it is conducted by means of blood without blood, there is a high possibility of serious and serious infringement upon the life of the person outside the application, while when the instant surgery is conducted with blood transfusion, the possibility of recovery is considerably higher than that of the applicant, and there is no other alternative treatment method that may bring about the same level at the present clinical level. Therefore, since the most appropriate and essential treatment method that can be performed at present to maintain the life of the person outside the application is the instant surgery that entails blood transfusion, its implementation is consistent with the welfare of the person outside the application for blood.

Nevertheless, the debtors, who are the persons with parental authority over the applicant, refuse the blood transfusion on the grounds that they are against the doctrine of religion they believe. In light of the purport of designating the parents as the persons with parental authority over the child and the standards for exercising parental authority, it is difficult to recognize the intention of refusing the blood transfusion expressed by the debtor as effective.

On the other hand, the applicant is a newborn baby remaining one month after the birth, and there is no objective document to presume whether to consent to the medical treatment for him/her. However, considering the fact that the applicant's present condition, treatment process, possibility of recovery and life are human nature, it is reasonable to see that the applicant has the consent to the blood transfusion in the present situation where the urgency of the medical treatment is sufficiently recognized.

Although debtors have the freedom of religion not to be forced to perform acts contrary to their religious belief, and therefore they cannot compel their consent to blood transfusion against the doctrine of religion they believe, the right to life should take precedence over other fundamental rights in consideration of the following: (a) the right to life is a preemptive and natural legal right based on the nature of human life and the objective of existence, and the value of fundamental rights that function as the premise of all fundamental rights stipulated in the Constitution, and should take precedence over other fundamental rights; and (b) the need to perform the instant surgery through blood transfusion is urgent and urgent; and (c) the obligee hospital can seek the exclusion of interference with such medical treatment against the debtors unless the debtors who are the persons with parental authority over the applicant do not consent thereto.

Furthermore, as recognized earlier, the need to preserve the instant provisional disposition is clearly explained in light of the following: (a) the Nonparty, who was born with a congenital heart disease, did not receive necessary medical treatment for at least one month and, in light of the current status, it seems that the surgery and the instant surgery is urgently needed because it is difficult for the Nonparty to readily expect the survival period of the applicant in light of the current status.

However, the creditor also seeks to disclose the contents of the order in the provisional disposition of this case through the execution officer. However, in light of the content and nature of the order, this part is not acceptable.

3. Conclusion

Thus, the motion of this case against the creditor is accepted within the above scope of recognition, and the remaining motion is dismissed as without merit. In consideration of all the circumstances such as the circumstance in which the lawsuit of this case was filed and the parties' intent, the litigation cost shall be borne individually, and it is so decided as per Disposition.

Judges Lee Sung-chul (Presiding Judge)