형법 제20조 사회상규 규정의 성립경위

Abstract

One of the grounds that allows the exemption of criminal liability in the Korean Criminal Act is the Article 20 (Justifiable Act). Article 20 specifically states that 'an act which is conducted in accordance with Acts and subordinate statues, or in pursuance of accepted business practices, or other action which does not violate the social rules shall not be punishable'. Among the three justifiable acts, the exemption based on the 'normal social rules' is considered one of the most unique features of Korean Criminal Act. Unlike other laws, it does not originate from the German Criminal Act or Japanese Criminal Act. There has not been much research on how the 'Normal Social Rules' had been established in the past. Since it was unclear where the 'Normal Social Rules' originated benchmarked from, many issues have been raised regarding the interpretation of the provisions. Recently, the author found important documents which illustrate the legislative process of The 'Normal Social Rules'. Byungro Kim played a significant role in writing the draft of general provisions of Korean Criminal Law. In his article, "Discussion on Unlawfulness as a Requisite for Criminal Liability", which was published in 1915, he used the concept of 'Normal Social Rules' based on the concept of material unlawfulness. The author examined the establishment process of 'Normal Social Rules' in the following chronological order: (1) Byungro Kim' idea in his 1915's article, (2) Reform of Criminal Act in Japan in 1930s, (3) Draft of Korean Criminal Act in 1949, (4) National Assembly and Establishment of Korean Criminal Act in 1953, (5) Korean Supreme Court decisions. The author's goal is to reconstruct the purpose of the legislation of 'Normal Social Rules'. The author proposes a hypothesis that the 'Normal Social Rules' was introduced into the Korean Criminal Act as a buffer, which mitigated the conflicts between the Western Rule of Law and Korean or Eastern Society.