형법에서 목적론적 해석의 가능성과 한계

Abstract

I would like to address a conflict of the principle of ‘nulla poena sine lege’ and Hermeneutics cycle in this paper. This is crystallized as ‘Possibility and Limit of the teleological interpretation in criminal law’. The writer is to deploy Beccaria’s Book as a starting point. Dei delitti e delle pene( English: On Crimes and Punishments) is a seminal treatise on legal reform written by the Italian philosopher and thinker Cesare Beccaria. From today's perspective I found the ‘a bit reckless’ Beccaria's claim in this book. First, Beccaria claims that judge has no authority to interpret the criminal in a criminal case, because judge is not the legislation. Second, Beccaria insists that judge use ‘the perfect syllogism’. Third, Beccaria claims that ‘uncertainty of the law’ is also a harm. I bring forward three questions about the ‘Beccaria's three claims’ and propose my own answer with regard to criminal law. - ‘the perfect syllogism’ is possible? - disorder caused by the interpretation of law is so serious? - ‘uncertainty of the law’ is a harm? My answer to the first question is “the perfect syllogism is impossible”. My answer to the second and third question is “the interpretation of criminal law can be reasonable if we can control the teleological interpretation. Hermeneutics cycle based on the vagueness of language law happens in all laws, including criminal law. But the interpretation of criminal law has different aspect. This is revealed in ‘limits of the teleological interpretation’. In this paper I give shape to ‘limits of the teleological interpretation’: ‘limited’ Hermeneutics circle, prohibition of ‘contra-textl Interpretation’, Limit of ‘creative interpretation’, the need of revision of criminal law. A conflict of the principle of ‘nulla poena sine lege’ and Hermeneutics cycle should be shunned by the ‘limits of the teleological interpretation’.