사람의 시기와 진통설의 한계 - 대법원 2007.6.29. 선고 2005도3832 판결의 평석을 중심으로 -

Abstract

The labor(or beginning of parturition) theory as the start of human being from a criminal perspective has been the commonly accepted view. But the judgement of supreme court, 2005도3832 was sentenced at 2007.6.29., that the court and the prosecution were in confrontation with each other in relation to 'the start of human being' on the case of cesarian section showed the limitation of the labor(or beginning of parturition) theory. Because it could not find out the moment of beginning of parturition by the labor(or beginning of parturition) theory. The labor(or beginning of parturition) theory based on the construction of a phrase, 'during parturition', from Clause 251 of Criminal Law. In fact, however, even a clinician(especially an obstetrician) can not know the accurate beginning of parturition. And far from thinking of the beginning of parturition as the start of human being, clinicians think the moment of umbilical cord clamping/cutting instead. Therefore, there is a wide gap between the normative decision in the Criminal Law and the real fact in the clinical field upon the concept of 'the start of human being'. Furthermore, what the general public thinks is not the labor(or beginning of parturition) theory as the start of human being. As the judgement of supreme court, 2005도3832, could not figure out the moment of beginning of parturition, so the labor(or beginning of parturition) theory can not function as the objective decision criteria. Parturition without labor like the case of cesarian section also makes little difference. So this article tries to seek an alternative solution to a problem of the labor(or beginning of parturition) theory. And it suggests a theory of legislation that could minimize a gap or incongruity between the alternative solution to a problem of the labor(or beginning of parturition)theory and the attitude of present Criminal Law toward the concept of 'the start of human being'.