인간의 존엄한 삶과 죽음에 관한 헌법적 검토

Abstract

Different individuals have different preferences for the quality of their death, and it is possible for the state to respect these preferences on an individual basis. For instance, some individuals voluntarily choose a lifestyle (and death) of solitude of their own accord and without legal permission to do so. The state cannot intervene or interfere with the choice to live and/or die in solitude. This is markedly differentiable from death in social exclusion or isolation, which is not the choice of the affected individual. In these latter cases, the death is an involuntarily “lonely” death.
 Last year, the Act on the Prevention and Management of Lonely Death was passed to reduce the number of lonely deaths. The act defines and targets “lonely death” in which a person living alone, disconnected from people around him or her, such as family, relatives and neighbors, dies alone from suicide, disease, etc. and his or her corpse is discovered after a certain period of time. Defining “lonely death” in these terms and as something irreconcilable with the quality of death guaranteed by the constitution necessitates state intervention.
 This study seeks to determine the constitutional basis for state intervention in lonely deaths and to identify the conditions required to justify such intervention. It confirms that the constitutional basis for state intervention in lonely death does not exist if the economic, social, and cultural conditions of humane living are derived from the basic constitutional right to a life worth of human beings (Art. 34), to health (Art. 36(3)), and to human dignity (Art. 10). In particular, it highlights that in order to guarantee dignity in death by preventing lonely death, the state must prevent the deterioration of the conditions of dignified life (which is a path to lonely death) by actively guaranteeing individual economic stability and health. The traditional, freedom-centered interpretation of basic rights makes it difficult to establish a constitutional basis for the prevention of loneliness by the state. An interpretation which justifies state intervention requires that the state be obligated to expand freedom and guarantee social rights. Considering that social isolation must necessarily involve “self-neglect”, the limitations of this traditional view become even clearer.
 The Act on the Prevention and Management of Lonely Death does not prescribe intervention in the exercise of an individual's self-determination, but rather aims to intervene when the conditions enabling self-determination are not met. In other words, the active realization of social rights in the constitutional law should be stipulated in the Act on the Prevention and Management of Lonely Death . Namely, the state can protect individuals from the risk of dying alone by actively guaranteeing the right to live humanly under constitutional rights including Article 34 of the Constitution and the right to health under Article 36 (3) of the Constitution.