형법의 과제, 형법의 한계 그리고 리바이어던형법 - 국가폭력의 경우, 형법과 국가 및 개인의 관계에 관한 패러다임의 전환 -

Abstract

In the traditional criminal jurisprudence, criminal law has been described as a function of guaranteeing freedom through the concept of legal interests. However, this article points out that the original role of the criminal law is to limit citizen's freedom for the protection of legal interests, and that in the Constitutional State is the security of citizen's freedom is rather the role of the Constitution. Moreover, this paper makes clear—through examining the constitutional guidelines that set limits on criminal laws restricting freedom in the name of the protection of the rights and interests of the citizen—that the task of criminal law as the restrictor of freedom and the task of constitutional law as the securer of freedom are apprantly divided. In this respect, it can be confirmed that the Magna Carta of the criminal is not a criminal law but a Constitution, and that the guidelines of the Constitution, which exercises the function of securing freedom, can only be applied to citizens who are subject to fundamental rights, and cannot be applied to the State itself that is obliged to guarantee these fundamental rights. By applying the findings here to the matters pertaining to the recognition of criminal responsibility for the state violence that infringe on the citizens’ legal rights, this article intends to formulate the following criminal justice model: To the State as for the subject of the State violence, should be applied the so-called “Leviathan criminal law” instead of the “civil criminal law” that is only applied to the citizens who are themselves the subject of fundamental rights. The Leviathan criminal law can be characterized by the fact that it does not incorporate freedom guaranteeing constitutional guidelines. In addition, civil servants who exercise illegal power in the course of state violence should be subject to the so-called “quasi-Leviathan criminal law”. The quasi-leviathan criminal law is characterized by the fact that it does not contain freedom guaranteeing constitutional guidelines based on trust protection principles, because civil servants exercising their public power are mere mandatory agents, just like the state, to guarantee the basic rights of citizens. In order to implement this criminal law model into normative reality, it is necessary to precede changes not only in natural persons, but also corporations, organizations, and even the State, as subjects of criminal law. As a prerequisite, if criminal liability can be imposed on the State and the Public Officials who exercise the power of the state in the case of State Violence, the paradigm shift from the modern thinking about the relationship between state, individual and (criminal) law can be brought about. Since the modern era, a state monopolizing the penal code has exercised its penal rights for individuals only, while relying on the law based on the vertical relationship with individuals. However, if criminal responsibility can be imposed on the state that commits State Violence much like individuals committing crime, not only can the principle of national sovereignty be realized in the penal code, but the (criminal) law can also be expected to break away from nationalistic thinking.