정당행위에 관한 형법적 해석론

Abstract

Regarding legal nature of justifiable act, academic community expresses different views where some believe that it conforms with the ground to constitute the elements whereas another thinks it conforms with the circumstances precluding wrongfulness while the other views that it conforms with supralegal circumstances precluding wrongfulness. As evidenced above, Korean Criminal Acts displays distinction where it legislated practical supralegal circumstances precluding wrongfulness by stating "other action which does not violate the social rules" unlike German or Japanese Criminal Laws. More specifically upon Article 20 of the Criminal Act, the majority of academic community presents the reason for such provision to continue to exist as it contains the nature capable of supplementary application when it is inadequate to apply to other emergency actions. However, 'other action which does not violate the social rules' upon justifiable act at the Article 20 of the Criminal Act raises a problem where illegality has to be entirely reexamined regarding not only the case mentioned in this study but also almost all other cases. Most of all, such rules propose an interpretational standard where social and ethical acceptability needs to be considered where usability is socially recognized or the said action does not incur social harms; and since it is identical with the Article 2 of German Nazi Criminal Law which introduced "healthy public sentiment" into a standard under the criminal law, it deprives the requirement to accord with the principle of legality as well as the purpose to protect from the crimes limited to the criminal acts. Consequently, this study approaches this provision through the theory of analysis and induces a conclusion where this particular provision no longer needs to continue to exist since it is a type of the circumstances precluding wrongfulness. And this study is also to examine constitutionality of the standard, "other action which does not violate the social rules" under the Article 20 of the Criminal Act by making an approach through the theory of analysis whether it conforms with the scope of protective objective by the criminal laws as well as systematic and subjective intention of legislators in conjunction with the principle of clarity demanded by the Article 1 of the Criminal Act and the Article 13 of the Constitution of the Republic of Korea.