논문 상세보기

한국법철학회> 법철학연구> 여성의 재생산권리와 생명의료과학기술의 관계에 대한 소고 -보조생식술의 이용을 중심으로

KCI등재

여성의 재생산권리와 생명의료과학기술의 관계에 대한 소고 -보조생식술의 이용을 중심으로

The relationship between the reproductive rights of women and the biomedical science and technology -focusing on the use of the assisted reproductive technology

김은애 ( Eun Ae Kim )
  • : 한국법철학회
  • : 법철학연구 12권1호
  • : 연속간행물
  • : 2009년 05월
  • : 121-150(30pages)
피인용수 : 19건

(자료제공: 네이버학술정보)

DOI


목차


					

키워드 보기


초록 보기


						
Due to the development of the biomedical science and technology, including the egg retrieval by the medical operation and the reproduction of the embryo in vitro, the kind of the assisted reproductive technology has became various, it`s use has been increased according to the medicalization of the process from the conception to the delivery in despite of the several bioethical controversy. The utilization of the assisted reproductive technology should assure the reproductive rights of women, insofar as women is the subject of the assisted reproductive technology because only women can get pregnant by the use of the assisted reproductive technology. The reproductive rights of women means that women has the real power to choose and to decide the way and the process of the reproduction. This right should also assure the right to achieve and to maintain the reproductive health(a state of complete physical, mental and social well-being), the right to access the information and the knowledge relevant to the reproduction, and the right to use the biomedical science and technology including the assisted reproductive technology. Since as the medical treatment includes the prescription for the ovulation, the egg retrieval by the medical operation, the multi-embryo transfer and the selective fetal reduction that may cause a harm or baneful influence, the utilization of the assisted reproductive technology has a direct effect on the reproductive rights of women, particularly the reproductive health right of women. Furthermore, the gamete donation and it`s recipience as a the way to build a family is related to the human rights(above all the reproductive rights) of the women as the donor and the recipient. In particular, this new way divides the motherhood into three parts: the genetic mother who offers the egg that is essential to the fertilization, the surrogate mother who goes through the process from the gestation to the parturition, the sponsor who promises to raise the child. The legal condition including the public system regarding the assisted reproductive technology in Korea is inadequate to ensure the reproductive rights of women who are the primary utilizer of the biomedical science and technology including the assisted reproductive technology. Particularly, since the gamete donation and recipience is surrounded by various bioethical, social and legal dispute, it is not easy task to secure the reproductive rights of the donor and the recipient. Therefore, we should acknowledge the need of the assisted reproductive technology including the third party reproduction using the donated gamete to the domain of bioethics and law. We should take and introduce the gamete donation the legal measure to guarantee the reproductive rights of women as the subject of the medical treatment as well as the subject of the donation and the recipience.

ECN

ECN-0102-2012-360-000869609


UCI

I410-ECN-0102-2012-360-000869609

간행물정보

  • : 사회과학분야  > 법학
  • : KCI 등재
  • : -
  • : 연3회
  • : 1226-8445
  • :
  • : 학술지
  • : 연속간행물
  • : 1998-2018
  • : 532


저작권 안내

한국학술정보㈜의 모든 학술 자료는 각 학회 및 기관과 저작권 계약을 통해 제공하고 있습니다.

이에 본 자료를 상업적 이용, 무단 배포 등 불법적으로 이용할 시에는 저작권법 및 관계법령에 따른 책임을 질 수 있습니다.

발행기관 최신논문
| | | | 다운로드

1사이버공간의 규제문제와 사회규범에 대한 법철학적 분석

저자 : 오태원 ( Tai Won Oh )

발행기관 : 한국법철학회 간행물 : 법철학연구 12권 1호 발행 연도 : 2009 페이지 : pp. 7-66 (60 pages)

다운로드

(기관인증 필요)

초록보기

The regulative structure of cyberspace is currently to the process which comes to make. For the formation of ideal regulative structure, discussion about cybernorms will be necessary when we consider that the regulative structure is being formed. There was liberalism which refuses the intervention of the nation about regulation of cyberspace. This liberalism, however, disregarded that the basic operation of law in cyberspace be necessary and neglected the legal solution of jurisdiction and conflict of law. Liberalism underestimated the representative democracy and the law which was enacted by the representative congress. Liberalism disregarded that the decision of people in cyberspace could be deteriorated same as in real space. In opposition, there was non-discriminative attention about the regulation of cyberspace and real space. The non-discriminative attention disregarded the regulative structure of cyberspace which had the substantive difference from real space. They, however, cannot explain intervention of new regulative element, namely `code`. They neglected the concepts and boundaries of rights which was closely related to information. Although the cyberspace is not the independent place from real space, special features of cyberspace and cybernorms should not be disregarded. Self-regulation based only on social norms is not ideal. Informal social norms always have the problems of information delay, strategic conduct, conflict of moral norm and profit norm, distorted preference and negative external effect. For the mitigation of the problems of social norms, it is necessary to regulate social norms by law. Law can regulate social norms directly to prohibit the action of social norms or indirectly to change the social meaning. To make an efficient law, sufficient understanding and consideration of social norms are important. Specially, it is more important in cyberspace in which new law and regulative structure are required. The idea of information society can be founded from the features of cybernorms. The consideration and understanding of cybernorms are important for the law to be accepted and conformed efficiently. Cyberspace can be more developed to an ideal space through the recognition and respect to cybernorms.

2기본권 조항과 사법심사제도의 법적 의미 재론(再論)

저자 : 안준홍 ( Jun Hong Ahn )

발행기관 : 한국법철학회 간행물 : 법철학연구 12권 1호 발행 연도 : 2009 페이지 : pp. 67-88 (22 pages)

다운로드

(기관인증 필요)

초록보기

As Korea becomes democratic, the judicial review by the Constitutional court is active. However, skepticism about the legal status of the constitutional rights and the judicial review increases at the same time. The workings of the basic rights clauses of the Korean constitution are vague and open rather than clear and definite. Then are those clauses the institutionalized ideas of law rather than a kind of legal norms as legal principles? And is the judicial review a legislative work rather than an adjudicative one? The proponents of the exclusive legal positivism regard the basic rights clauses of the constitution as the institutionalized ideas of law, not legal norms. The legal interpretivism treats them as legal norms even when they are not codified or conventionally recognized as legal norms. The inclusive legal positivists regard them as legal norms because they are incorporated into the constitution. The inevitable subjectivism seems to be nearly fatal to the legal interpretivism. And the basic rights clauses also have some definite contents, and there are rooms for a citizen`s claim that a legal norm is unconstitutional to be accepted at the court. So the basic rights clauses can be seen as "incomplete legal norms as well as the institutionalized ideas of law", and the inclusive legal positivism seems to be supported. The distinction between the legal norms and the ideas of law is sublated as much. However we should keep in mind that the ideas of an actual legal system and those of an ideal one may be different.

3소극적 안락사, 법과 종교의 경계에 선 성찰 -불교생명윤리를 중심으로-

저자 : 이정훈 ( Jung Hoon Lee )

발행기관 : 한국법철학회 간행물 : 법철학연구 12권 1호 발행 연도 : 2009 페이지 : pp. 89-120 (32 pages)

다운로드

(기관인증 필요)

초록보기

Do we have a right to die? Buddhist ethics answer to this question, "Yes." But, this decision should be derived from internal enlightenment. An agent must realize the transience of life and panca-skandha(five elements of all existence), when he or she decide to die. As we considered above, buddhist philosophy refuse any absolute truth and reality of beings in the world. Therefore, human life is also not absolute. In an attempt to seek theoretical consensus not based on the religious doctrine on the concept of human rights, an argument derived from secular principles to protect a private declaration of intention can be justified. Dworkin also argued in his commentary on Cruzan case that blind preservation of a persistent vegetative state is not interest for a sufferer. In this respect, it is possible that we have the right to decide our death. However, even though I criticize `ethical ideology`, I can assert that pluralism is a basic component of ethical rationality. In pluralistic and secular soceity, `original position` can`t not be a presumption. Polarization that one personality is spilt in public reason and private reason is already occurred. Therefore, it is not necessary to assume `the original position` for the agreement on the criteria of justice. The interiority of the ethical principle seen as a form of conscience is abundantly commented on in religious ethics. This is the reason to decide what would a patient want be. We should examine on an internal aspect of patient who is a persistent vegetative state through his or her religious ethical principles. In this respect, I demonstrated on buddhist biological ethics. According to the buddhist opinion, secular argument on the right to die can be justified. And a decriminalization of mercy killing also can be justified. Of course, it is not to say that buddhist ethical principle is a truth. I just give a explanation on the buddhist biological ethics.

4여성의 재생산권리와 생명의료과학기술의 관계에 대한 소고 -보조생식술의 이용을 중심으로

저자 : 김은애 ( Eun Ae Kim )

발행기관 : 한국법철학회 간행물 : 법철학연구 12권 1호 발행 연도 : 2009 페이지 : pp. 121-150 (30 pages)

다운로드

(기관인증 필요)

초록보기

Due to the development of the biomedical science and technology, including the egg retrieval by the medical operation and the reproduction of the embryo in vitro, the kind of the assisted reproductive technology has became various, it`s use has been increased according to the medicalization of the process from the conception to the delivery in despite of the several bioethical controversy. The utilization of the assisted reproductive technology should assure the reproductive rights of women, insofar as women is the subject of the assisted reproductive technology because only women can get pregnant by the use of the assisted reproductive technology. The reproductive rights of women means that women has the real power to choose and to decide the way and the process of the reproduction. This right should also assure the right to achieve and to maintain the reproductive health(a state of complete physical, mental and social well-being), the right to access the information and the knowledge relevant to the reproduction, and the right to use the biomedical science and technology including the assisted reproductive technology. Since as the medical treatment includes the prescription for the ovulation, the egg retrieval by the medical operation, the multi-embryo transfer and the selective fetal reduction that may cause a harm or baneful influence, the utilization of the assisted reproductive technology has a direct effect on the reproductive rights of women, particularly the reproductive health right of women. Furthermore, the gamete donation and it`s recipience as a the way to build a family is related to the human rights(above all the reproductive rights) of the women as the donor and the recipient. In particular, this new way divides the motherhood into three parts: the genetic mother who offers the egg that is essential to the fertilization, the surrogate mother who goes through the process from the gestation to the parturition, the sponsor who promises to raise the child. The legal condition including the public system regarding the assisted reproductive technology in Korea is inadequate to ensure the reproductive rights of women who are the primary utilizer of the biomedical science and technology including the assisted reproductive technology. Particularly, since the gamete donation and recipience is surrounded by various bioethical, social and legal dispute, it is not easy task to secure the reproductive rights of the donor and the recipient. Therefore, we should acknowledge the need of the assisted reproductive technology including the third party reproduction using the donated gamete to the domain of bioethics and law. We should take and introduce the gamete donation the legal measure to guarantee the reproductive rights of women as the subject of the medical treatment as well as the subject of the donation and the recipience.

5법적 후견주의 -개념분석적 고찰-

저자 : 오세혁 ( Se Hyuk Oh )

발행기관 : 한국법철학회 간행물 : 법철학연구 12권 1호 발행 연도 : 2009 페이지 : pp. 153-182 (30 pages)

다운로드

(기관인증 필요)

초록보기

To what extent can legal exercise of state power ever be justified? There are so many answers to this question including anarchism, liberalism, communitarianism, totalitarianism etc. Among them, paternalism, strictly speaking, legal paternalism is one of the most reasonable and plausible solutions. It justifies legal exercise of state power to protect a person from self-regarding harm against one`s will. Paternalism can be defined broadly as `a interference with another for his own good`. It can be classified such pairs of concepts as hard/soft paternalism, physical/moral paternalism, strong/weak paternalism, positive/negative paternalism, passive/active paternalism etc. Legal moralists argue against paternalism, while liberals who abhor moral legalism also criticise it. According to harm principle based on classical liberalism, liberty-limiting interference can be justified to protect a person from not self-regarding harm, but other-regarding harm. But, legal moralism justifies liberty-limiting interference in order to protect a common morality itself as well as a person from harms. In a sense, paternalism contradicts harm principle on the one hand, legal moralism on the other hand. It paradoxically means that paternalism can be compatible with harm principle as well as legal moralism. Can paternalism really coexist with harm principle or legal moralism? A conceptual-analytic study on paternalism is necessary to answer to the question.

6드워킨의 헌법사상: 헌법적 통합성과 파트너십 민주주의

저자 : 함재학 ( Chai Hark Hahm )

발행기관 : 한국법철학회 간행물 : 법철학연구 12권 1호 발행 연도 : 2009 페이지 : pp. 183-222 (40 pages)

다운로드

(기관인증 필요)

초록보기

The main purpose of this article is to provide an introduction to Ronald Dworkin`s constitutional theory. While Dworkin`s debate with H.L.A. Hart on judicial discretion and his "rights-thesis" are well-known, his views on constitutional interpretation, democracy and judicial review have not received proper attention from the Korean legal community. Given that he has consistently developed his philosophy of law through active engagement with constitutional issues, this is a gap that demands filling. The premise of this article is that a thorough understanding of his legal philosophy requires a command of his constitutional theory, and vice-versa. Rather than providing detailed discussions on his views on the various provisions of the constitution, the article focuses on two broader issues: his theory of constitutional interpretation and his views on the judiciary`s role in a democracy. In order to provide some historical background to Dworkin`s views on constitutional interpretation, a brief description of the rise of originalism as a conservative response to the liberal decisions of the Warren Court will be given first. This will be followed by a analysis of Dworkin`s criticism of the originalist position. Next will be an account of his argument for the "moral reading" of the constitutional as an instance of his broader theory of "law as integrity". In the part on Dworkin`s views on democracy and judicial review, the first section discusses his criticism of John H. Ely`s theory which seeks to confine judicial review to matters of democratic process. The second section seeks to explain why Dworkin is against both judicial activism and judicial passivism. To him, they not only neglect the weight and authority of the interpretative tradition of American constitutional system, but also end up sacrificing the legal rights of the individual. The last section is a discussion of his theory of democracy because Dworkin basically attacks all views that presume that judicial review of legislation is difficult to justify in a democracy. Here, the focus will be on his distinction between majoritarian and partnership conceptions of democracy and on his understanding of political equality. The article will end with a brief discussion of a few selected responses to Dworkin`s constitutional theory, as well as a description of the changed political landscape in recent years with regard to the role of the judiciary in the United States.

7연성법(soft law)으로서의 「Unidroit의 국제상사계약원칙」 -그 법체계상의 지위와 기능을 중심으로-

저자 : 박영복 ( Young Bok Park )

발행기관 : 한국법철학회 간행물 : 법철학연구 12권 1호 발행 연도 : 2009 페이지 : pp. 223-254 (32 pages)

다운로드

(기관인증 필요)

초록보기

In den letzten Jahren sind einheitliche Regeln uber das Vertragsrecht ausgearbeitet worden, die sich nicht nur auf internationale Waren-kaufvertrage, sondern auf alle Vertrage beziehen. Die Rechtsver-einheitlichung in der Weltweitebene ist vor allem deshalb von Interesse, weil es eine vollstandige, aus intensiven rechtsvergleichenden Studien erwachsene Regelung enthalt, mit der die Eigentumlichkeiten aufzulosen ist, die in den Landesrechten noch aus verschiedenen uberholten Epochen verblieben, ohne irgendwelchen Schaden und mit au βerordentlichem Vorteil in einer hoheren Einheit. Es handelt sich um die vom Romischen Institut fur die Vereinheitlichung des Privatrechts(Unidroit) ausgearbeiten und 1994, 2004 veroffentlichten "Principles of International Commercial Contracts"(Grundlegeln der internationalen Handelsvertrage. Unidroit Prinzipien). Sie sind auch unter Beteiligung von Juristen aus vielen Landern mit Hilfe der rechts-vergleichenden Methode aufgestellt worden. Es gibt viel Material, an dem sich zeigen laβt, daβ ein weitgehender internationaler Konsens besteht. Aber diese Regeln sind zwar nirgends als geltendes Recht in Kraft gesetzt worden. In der Arbeit ist behandelt die Thematik "Die Unidroit Prinzipien als Maβstab fur die Feststellung der Luckenhaftigkeit des nationalen Rechts." Sollen die Unidroit Prinzipien dazu dienen, Lucken im nationalen Recht(z.B. dem koreanischen Burgerlichen Gesetzbuch) festzustellen und damit eine Legitimationsbasis fur deren Ausfullung durch die Rechtsprechung zu liefern? Fur und bevor diese eigentlichen Themenstellung des nahreren zuwenden, ist zunachst die Methoden der Rechtsgewinnung, insbesondere die Gesetzesauslegung und die Feststellung von Gesetzeslucken in der allgemeinen juristischen Methodenlehre geklart(Ⅱ). Und danach sind einige begriffliche und theoretische Klarungen uber das System der Rechtsquellen, bzw. die Ermittlung des positiven Gesetzes vorgenommen(Ⅲ). Diese konnten allerdings angesichts der auβerordentlichen Komplexitat und Schwierigkeit der Thematik nur skizzen-und bruchstuckhaften Charakter haben. Auf der Grundlage dieser theoretischen Vorabklarungen lassen sich allgemeine Folgerungen fur die Stellung der Unidroit Prinzipien im System der Rechtsquellen ziehen(Ⅳ 1). Schlieβlich ist auf einigen Konsequenzen fur die praktische Anwendbarkeit der Unidroit Prinzipien im Rahmen des geltenden Rechts und denen Einflusse auf die Auslegung und Forbildung des objektiven Rechts eingegangen(Ⅳ 2).

8법의 지배에 관한 연구

저자 : 한상수 ( Sang Su Han )

발행기관 : 한국법철학회 간행물 : 법철학연구 12권 1호 발행 연도 : 2009 페이지 : pp. 255-280 (26 pages)

다운로드

(기관인증 필요)

초록보기

This article aims to examine the theoretical and practical implications of the rule of law in the viewpoint of discourse theory. Discourse is language as social practice determined by social structures. Actual discourse is determined by socially constituted orders of discourse. Orders of discourse are ideologically shaped by power relations in social institutions and in society as a whole. Discourse has effects on social structures and contributes to social continuity and social change. Legal discourse is a special type of discourse which operates in the realm of law. Legal discourse as a kind of official discourse has defining and regulatory effects on other social discourses and practices: that is, legal discourse has the effects of incorporating and excluding other social discourses and practices. Rule of law discourse is a type of legal discourse. Rule of law discourse has many dimensions: rule of law as general discourse, rule of law as interdiscourse and intradiscourse, rule of law as counter discourse and dominant discourse, rule of law as means discourse and end discourse. Through the discursive investigation of the rule of law, we can understand many aspects of the rule of law such as formal legality and substantive legality, rule by law and rule of law, rule of law and rule of reason etc. But further study of discourse theory is needed to clarify the meanings of the rule of law.

9"있는 법"과 "있어야 할 법"의 연관성

저자 : 박은정 ( Un Jong Pak )

발행기관 : 한국법철학회 간행물 : 법철학연구 12권 1호 발행 연도 : 2009 페이지 : pp. 281-314 (34 pages)

다운로드

(기관인증 필요)

초록보기

This paper examines three contemporary mainstream legal philosophers, namely whether their analytical or constructive theories can meet the demand of the changing society and be considered as sufficiently reflective on the nature of law. On the basis of a critical analysis of the main hypotheses underlying their theories, this paper asks whether they restrict the legal thought to the lawyer`s daily business by putting aside the problem of the justification of the legal sanction. This paper argues that, if we want to take seriously the relation of law and values, that means law as a moral idea, the non-positivist legal thought presents significant advantages over rival approaches. According to this non-positivist legal thought, the question of `the law as it is` can not be separated from the question of `the law as it ought to be`. Law is a human institution as fact. But at the same time it is an ideal standard against which our institutions are measured. In that sense this paper tries to advance a normative argument for a pluralist legal theory based on two central pillars: overcoming the descriptive/prescriptive dualism, and the judiciary centered constructivism.

10자기준거적 체계로서 복지체계-예비적 고찰

저자 : 고봉진 ( Bong Jin Ko )

발행기관 : 한국법철학회 간행물 : 법철학연구 12권 1호 발행 연도 : 2009 페이지 : pp. 315-334 (20 pages)

다운로드

(기관인증 필요)

초록보기

John Rawls calls his theory `Justice as Fairness` as strict compliance theory as opposed to partial compliance theory. He needs two concepts `original position` and `veil of ignornance` in order to set the principles of justice for the basic structure of society. His `ideal` theory conveys the idea that the principles of justice are agreed in a purely hypothetical situation. The second principle of justice (social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be `to everyone`s advantage`, and (b) attached to positions and offices `open to all`) is in my opinion very ideal. Rawls avoids `contingency` and `complexity` of the modern society to set the principles of justice. On the contrary, Luhmann`s system theory is based on `complexity` of the modern society. He uses the general framework of the system theory as a functionally-differentiated social system. His theorie is more realistic. Given the functional differentiation of society no subsystem can avoid autonomy. Funtional subsystems of society are always self-referential systems. In my opinion the general theoretical conception of system theory can be applied to the welfare system: as self-referential system it is open to cognitive information but closed to operative(normative) control. With concept of self-referential system problems of the welfare-regulatory state can be more or less solved.

12
주제별 간행물
간행물명 수록권호

KCI등재

경영법률
29권 1호 ~ 29권 1호

연세 의료·과학기술과 법
9권 2호 ~ 9권 2호

KCI등재

일감법학
41권 0호 ~ 41권 0호

KCI등재

법학연구
26권 4호 ~ 26권 4호

KCI등재

민주법학
68권 0호 ~ 68권 0호

KCI등재

비교형사법연구
20권 3호 ~ 20권 3호

연세 공공거버넌스와 법
1권 1호 ~ 1권 2호

KCI등재

과학기술법연구
24권 3호 ~ 24권 3호

연세법학
30권 0호 ~ 31권 0호

최신판례분석
67권 5호 ~ 67권 5호

KCI등재

법조
67권 5호 ~ 67권 5호

KCI등재

법학논총
35권 3호 ~ 35권 3호

KCI등재

법학연구
71권 0호 ~ 71권 0호

KCI등재

법학논집
23권 1호 ~ 23권 1호

KCI등재

법과 사회
32권 0호 ~ 32권 0호

KCI등재

법과 사회
31권 0호 ~ 31권 0호

KCI등재

법과 사회
29권 0호 ~ 29권 0호

KCI등재

환경법연구
27권 4호 ~ 27권 4호

KCI등재

환경법연구
27권 4호 ~ 27권 4호

연세 공공거버넌스와 법
9권 2호 ~ 9권 2호
발행기관 최신논문
자료제공: 네이버학술정보
발행기관 최신논문
자료제공: 네이버학술정보

내가 찾은 최근 검색어

최근 열람 자료

맞춤 논문

보관함

내 보관함
공유한 보관함

1:1문의

닫기