한국형사법학 60년의 회고와 전망 -형법각론분야: 개인적 법익에 대한 죄-

Abstract

The Korean Criminal Law Association was founded in 1957, in difficulties even before the scars of Korean war was recovered. From time the Association started by the great seniors to this day, members of the Korean Criminal Law Association have contributed toward legislations and judgements in many ways. The result of everyone’s hard work shows big improvement not only in criminal law: general and basic law, and special criminal law in legislations and amendments but also in judgements by the supreme court. In the first half 30 years of past 60 years, protection function and preservation function have been on top of guarantee function to achieve the national goal; the stabilizing and developing our society after the long war and establishment of the government afterwards. Too many special criminal law regulations and also cases reflected this social atmosphere. On reflection of those years, for the latter 30 years, it is prioritized to normalize the guarantee function which is currently the most important function in criminal law. Criminal law should protect people’s freedom and benefit by performing its role as legal basis of exercising national punishment and by clarifying its limit. Through the system it would be possible for members of our society to coexist and make harmony. To accomplish this it would be needed to put even further effort more than those scholars have contributed to criminal law for the last 60 years. I want to mention issues below regarding to crime of individual benefit and protection of the law. First of all, it should be considered how the criminal law respond to those rapidly changing common values and also to development of science and medical technology. As we could easily recognize, artificial intelligence(AI) brought us into new emerging problem. New types of violation to individual benefit and protection of the law, for example, traffic accidents by robots, autonomous(land) vehicles, and invasion of privacy using drone and GPS device, became social issues. Moreover, numerous number of people in social network services(SNS) suffer from slander, libel, threat, coercion, bullying in cyber space and the damages far surpass those in real life. Effective countermeasures on the aspect of criminal law need to be urgently established. Secondly, consistent efforts to gradually integrate special criminal law into general criminal law is strongly required. Scholars in Criminal Law have argued it for a long period of time but it still have long way to go. In recent years, some of articles including Special Bodily Injury(§258-2), Special Coercion(§324 ②), and Special Extortion(§350-2) in Punishment of Violences, etc. Act was amended and integrated into general criminal law in January 6, 2016. It is now possible to have justice and make balance in penalty system without a gap in punishment. It is inspiring that this progressive change shows potential for development. Last but not the least, criminal law should be restrictively applied as it use punishment which is the strongest method to suppress crime, however, it is also important not to leave proper object for punishment without paying any penalty. The importance of proper legislations and applying to judgement cannot be emphasized enough not only to ensure individual’s right and freedom based on the dignity of human being but also to protect individual benefit and to keep coexistence of members of the community.