국회 발의 중인 낙태죄 법안에 대한 비판적 연구

Abstract

2019.4.1. The Constitutional Court ruled that Article 269, Paragraph 1 of the Criminal Code for self-abortion and Article 270, Paragraph 1, ‘doctor’ were unconstitutional. At the time, the reason for the decision was that the woman's right to self-determination and the right to life of the fetus were in conflict with each other, and as a result of the proportionality principle, the form of protecting only the right to life of the fetus violated the Constitution, and the abortion crime clause that did not have the power to violate the abortion The reason for this was the fact that the fetus' life was not effectively protected in a conflict situation. Afterwards, six criminal laws and maternal and child health laws were proposed in the National Assembly for the reason of the constitutional inconsistency. These proposals can be classified into two positions in their approach to abortion, which are three eye and criminal laws that take the method of completely deleting the crime of abortion in Chapter 27 of the Criminal Act and stipulating the procedure for supporting legalized abortion in the Mother and Child Health Act. Chapter 27, the crime of abortion is amended, and the procedures and limits of legalized abortion are roughly divided into the remaining three categories set forth in the Maternal and Child Health Act.I n 2019, the Constitutional Court found that the fetus's right to life and the woman's right to self-determination were in conflict in determining constitutional inconsistency, and set the limits of legislative discretion to the National Assembly to resolve the conflict of fundamental rights. Looking at the above amendments with this point in mind, it can be questioned whether the amendment to the Criminal Act in the form of deleting Chapter 27 of the Criminal Act deviated from the limits of legislative discretion set by the Constitutional Court. On the other hand, in revising the laws related to abortion, the problem of the abortion permission period, the period of consideration, the problem of social and economic reasons, the problem of consultation under the Maternal and Child Health Act, the problem of consent in the treatment of minors, and the imposition of the doctor's duty to provide information Even if we look only at the government proposals, there are many challenges to be solved. In addition, if alternative legislation is to be prepared, the nature of women's right to self-determination, the limitation of protection of the right to life of the fetus, the review of the fetus' right to personality, and the state's duty of neutrality to protect all basic rights to the maximum in the event of a conflict of fundamental rights must also be considered. point you will have to remember.