낙태죄의 위헌성에 관한 고찰

Abstract

The Penal Code (StGB) enshrines the principle abortion prohibition to protect the life of the expectant man. According to section 269 (1) of the Criminal Code is the self-abortion und abortion after the pregnant woman's consent punishable by imprisonment of less than two years or a fine of less than 2,000,000 won. Section 270 of the Penal Code prohibits professional abortion provided with the reinforced stafe, regardless of the consent of the pregnant woman. The law for the welfare of mothers and children determines the eugenic (and genetic), medical, criminological, etc. indications that legitimize the artificial termination of pregnancy and thus make it unpunishable. The regulations regarding abortion in the criminal code and the law for the welfare of mothers and children are closely related to the population policy and the objectification of women. The state has applied the rules flexibly, according to the need to control the population, whereby the body of women has been considered as a controllable means whereby women are removed and alienated from their own question. The search for a solution to the question of abortion should take into account the two interests of women and fetuses. Fetas as human beings have life that needs to be protected by the state. With the absolute prohibition of abortion, the state fulfills its fundamental rights protection obligation. In reality, it is difficult to say that the absolute prohibition protects the lives of fetuses. Because despite the strict prohibition, the abortion rate is very high. With the absolute prohibition, women's right to self-determination, which determines women at birth, abortion itself, is ignored to zero. The Constitutional Court of Korea believes that the right to life derived from human dignity should be more respected as an elementary right of all rights and therefore more attention should be given to the collision of fundamental rights. But is the opinion of the court can not be tightened, because the right of women to self-determination as a fundamental right from the man's dignity is to be protected. It is clear to protect the life of fetuses. But the contactor does not have to be given evenly during the entire pregnancy period. With the deadline solution, which terminates the pregnancy within the 12 weeks of women, the right to self-determination and life are harmoniously protected.