臟器移植에 관한 형사정책적 硏究 = (A) study on the criminal policy of organ transplantion

• 저자 : 윤영수
• 형태사항 : v, 203p. : 삽도 ; 27 cm .
• 학위논문사항 : 학위논문(석사)-- 경상대학교 대학원: 법학과 2002
• KDC : 364.23 4
• 발행국 : 경상남도
• 언어 : 한국어
• 출판년 : 2002
• 주제어 : 장기이식, 형사정책, 장기기증, 뇌사문제

초록 (Abstract)

'The law on transplanting internal organs and etc.' was enacted and promulgated on February 8, 1999 and has been enforced since February 9, 2000 with a view to eradicating the illegal transactions of internal organs violating the provisions of the Constitutional Law on the dignity of human beings and running counter to the concepts of social ethics and providing all persons that need organ transplant with equal opportunity and at the same time legalizing the practices of extracting internal organs from brain-dead persons and increasing the supply of organs and giving new life to those who suffer from chronic organ failure.
Yet the trouble is that the organ donation of brain-dead persons has decreased to about 33 percent and that transplant from living bodies has dropped to 20 percent. And organ transactions are still carried on and problems related to organ transplant have come to the forefront, and there is a need for a revision of the Law.
In this context, this study focused on taking a look at the problems which have taken place since the enforcement of the Law as well as problems related to organ transplant from the viewpoint of the original purport of the Law and the criminal policies of the nation.
Chapter II formulated organ transplant, part of doctors' medical treatment on the basis of established discussions by interpreting the concept in a broad and narrow sense, dealing with the features and kinds of transplant. Then the chapter covered the process of organ transplant, which was introduced as a therapeutic method, here to stay and evolving from a experimental stage with the development of Cyclosporine, a immunosuppressant in the 1970s, and took a look at the current practices of organ transplantation on the basis of the reports of medical fields and statistics related to organ transplants. Particularly, in Korea's case, the chapter dealt with the situation before and after the establishment of 'the law on transplanting internal organs and etc. ' Also the chapter took a brief look at American UNOS and Korean KONOS, the networks of organ distribution across the nation.
Chapter II handled the history and contents of the Korean 'law on transplanting internal organs and etc. ' after taking a look at the process of foreign countries establishing the organ transplantation law and its contents in consideration of the fact that world-wide discussions about the legalization of organ transplant were launched in the process of organ transplant taking root as a therapeutic method due to the development of medicine and Korea; and that Korea established the law by making reference to the established laws of foreign countries.
Chapter IV linked problems with brain death, the agreement of donors to the extraction of organs, and the illegal transactions of human organs, which come from the fact that organ transplants are a special medical behavior in need of the organs of others to the provisions of 'the law on transplanting internal organs and etc. '
First, problems with Brain death dealt with the adoption or rejection of the Brain-death theory, the determination criteria of Brain death and the provisions of the cause of death of brain-death people.
Second, the agreement of organ donors, or their families, to organ extraction is of great importance, since organ transplant is not related to a medical treatment designed to help the donors, but capable of incurring serious problems or doing harm to the donors and the dead bodies, should be handled with care. Opinions about the subjects of the right to agreement the range and priority of those with right to agreement, and the method and limits of agreement, etc, may come into conflict with each other. This problem is closely connected with the difficulties of obtaining organs for transplant. The chapter dealt with the problems in terms of Brain-death persons and the deceased.
Third, there are problems related to the illegal transactions of human organs in the wake of a discrepancy between organ supply and demand. Most of the nations around the world ban such transactions and punish those who commit a organ-related crime. But illegal organ transactions seem not to disappear because of such a discrepancy and a human desire for healthy longevity, so the chapter took a look at the problems of organ transaction.
Chapter V brought the foreign cases, where human dignity and value and human rights were involved, to the forefront in relation to the transplant of ‘fetus's organs and etc.’ and took a look at the problems with the realities of abortion in Korea. On this basis, the research presented solutions to treatment using ‘fetus's organs and etc, ’ in relation to abortion problems. There have been attempts at materializing organ transplant and treatment using embryo cloning or human cloning. These problems of embryo cloning and human cloning cannot be morally, socially and legally legitimized, but the trends of the world seem to take priority in the matter. So the researcher thinks it necessary that legal devices should be worked out on the basis of a thorough analysis of problems with embryo cloning or human clone and the trends of the world.
Chapter VI presented innovations about major problems related to organ transplant in consideration of the purport of 'the law on transplanting internal organs and etc.' and its problems related to the enforcement of the law as well as the results of the established researches.
In conclusion, the researcher would like to make the following suggestions. Poor people with chronic organ failure should be given at least the minimum chance for an organ transplant, the national health insurance system should include all the areas of organ transplant and financial resources should be secured. As organ donors belong to a lower economic bracket, they should be provided with some compensation for a living. The researcher think it natural that those donors should be compensated in return for their organ donation to the humanitarian demand for free organ donation only means trying to ban commercial transaction.