원치 않은 장애아 출산에 대한 손해배상 (The recovery of damage caused by the unwanted birth of unhealthy child)

서지정보

· 발행기관 : 한양대학교 법학연구소
· 수록지 정보 : 법학논총 / 24권 / 2호 / 483 ~ 510페이지
· 저자명 : 이덕환

초록

The recovery of damage from unwanted birth of unhealthy child entalils the issue of value embedded in human life. It can't be addressed and considered based only on general theory of law associated with the recovery of damage, but on philosophical and ethical considerations. Therefore, there have been both complicated and subtle controversies over whether and to what extent each country recognizes the recovery of damage caused by the birth of unhealthy child. As discussed above, the unwanted birth of unhealthy child is attracting more and more attention among the community members dealing with legal cases and theories. However, it is just at a burgeoning stage at the moment. Theoretical foundations don't seem to be solid on the issue of whether and to what extent to recognize the recovery of damage in the case of the unwanted birth of unhealthy child.
As mentioned before, conventional theory of law has to be applied in deciding the level of recovery, away from both philosophical and ethical aspects surrounding recognition of the damage inflicted on the child. So, the parents should be entitled to both the whole costs of child-rearing and recovery for emotional distress. The unhealthy child itself should be given ordinary costs of care and extra-ordinary costs of care, as well. This way of approach seems to be both rational and desirable given that it improves the welfare of unhealthy child in general and is consistent with law of theory associated recovery of damage in particular.

영어초록

The recovery of damage from unwanted birth of unhealthy child entalils the issue of value embedded in human life. It can't be addressed and considered based only on general theory of law associated with the recovery of damage, but on philosophical and ethical considerations. Therefore, there have been both complicated and subtle controversies over whether and to what extent each country recognizes the recovery of damage caused by the birth of unhealthy child. As discussed above, the unwanted birth of unhealthy child is attracting more and more attention among the community members dealing with legal cases and theories. However, it is just at a burgeoning stage at the moment. Theoretical foundations don't seem to be solid on the issue of whether and to what extent to recognize the recovery of damage in the case of the unwanted birth of unhealthy child.
As mentioned before, conventional theory of law has to be applied in deciding the level of recovery, away from both philosophical and ethical aspects surrounding recognition of the damage inflicted on the child. So, the parents should be entitled to both the whole costs of child-rearing and recovery for emotional distress. The unhealthy child itself should be given ordinary costs of care and extra-ordinary costs of care, as well. This way of approach seems to be both rational and desirable given that it improves the welfare of unhealthy child in general and is consistent with law of theory associated recovery of damage in particular.

참고자료

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