간통죄의 법익에 대한 소고 ―유교 전통법의 보호법익로서 혼인과 가족―

Abstract

In Criminal Law of Korea, The Punishment of adultery went through changes since The Korean Empire. The adultery was the crime of dual punishment in Joseon Dynasty(1392-1910AD). During Japanese colonial ruling era of Korea, The Korean legal system had fallen under the Japanese Empire(to undergo European Influence). And the Subject of the adultery was only married female. After the Liberation from Japanese colonial rule, the Punishment of adultery was controversial especially on the reform of Criminal Law(1953). The opinion about the abolition of adultery was that the provision was vestiges of Japanese imperialism and feudalism. But the Government strongly wanted to maintain the provision of adultery. After much argument, the National Assembly passed the bill of Government with difficulty. It was the crime of dual punishment and an offence subject to complaint. The Criminal Law retained the adultery with the crime of dual punishment until now. And to this day, we went on the argument about the question of maintenance. On four times from 1990 until 2008, the Constitutional Court of Korea judged the case that the adultery was constitutional or not. The Court ruled the bill was constitutional all the time. Because the balance between the public benefit and the individual's basic human rights had been keep. And because two years jail sentence of the provision was suitable for an adulterer. The abolition of the adultery has basis on which the violation of the sexual purity and the faithfulness with marital relations was not the part of Criminal Law. Therefore the decriminalization of Confucian-ethics is an impotent issue in the East Asia. But Law is a kind of culture. For ages long we live in Confucian culture. And there should be wider discussion of this issue with the Protection of Criminal Law in Confucianism.