간통죄 위헌결정의 부당성과 개정입법안의 청원 - 전통법의 역사철학 관점을 중심으로 -

Abstract

This paper would like to aim to supply the Korea Constitutional Court’s fifth Decision at 26/2/2015 that the clause of adultery in the Korean Criminal Code is unconstitutional, with some explanatory & critical notes, the future prospect, and a calling upon the National Assembly to do a reform measure. The main topics & contents of this paper are as follows. At first, this paper tries to analyze & discuss the rationality & validity of the reasons that the KCC presented as the grounds of the unconstitutionality of the clause of adultery, and indicate their lack of persuasive power point by point. Second, this paper would try to definitions of several traditional concepts related to adultery and survey the origin & thickish historical developments of adultery in Far East Asian legal history, and meditate the philosophical essence & legal protective interests of adultery. Third, this paper would consider that the legal protective interests of adultery would be immanent in the basic principle of faithfulness & sincerity of the modern civil law, which may retrace its origin back to Inter-friendly Confidence(朋友有信) among Five Human-Relations Ethics(五倫) in Ancient East Asia. Forth, this paper also very deeply & sincerely meditates the philosophical real meaning of sexual good morals and manners to be protected through the punishment upon adultery. Finally, this paper tries to foresee some important positive or negative effects that the KCC’s fifth Decision of the unconstitutionality may bring about nationally & social-economically in the future. In conclusion, the author anticipate some desirable reformations as complementary follow-up measures and politely advise & courteously call upon the National Assembly to do some alternative legislations as soon as possible.