사회변화와 형사입법의 정당화조건 - 형법의 기능화의 문제와 형법각칙과 형사특별법의 개정방향 -

Abstract

Korea has been experiencing many ill effects in return for rapid modernization since 1960s. The widening gap between the rich and the poor, acceleration of disintegration, severance of communication between generations, collapse of public education, privatization of public domain and so on are the ill effects of rapid modernization. But, a clue for solving the problems are hard to be found. Recently, the dependence for information technology (IT) has been deepend, many problems such as cyber assault, cyber pornography, cyber libeling and e-commerce fraud are being raised. To cope up with these problems, German sociologist Ulrich Beck has insisted to return to the reflective modernization, which demands reflection over social principles of modern society, to dissolve the industrial society and to constitute a new society. The key factor for this process is the dissolution of the modern separation of 3 powers (the legislative, the government, and the court), experts system and reconstruction of the professional group. For this purpose, I reviewed the current Korean Criminal Law and other special criminal law, and make efforts to find out the problems of indiscreet lawmaking and strengthening of punishment in many criminal-related laws. The functionalization of criminal law is very evident at every domain of social sub-systems such as transportation, education, medical treatment, etc. For example, to protect functioning of transportation system, the theory of negligent crimes has been disrupted, and to protect functioning of medical system was enacted the special law for enforcement of health-related crimes. And the abstraction of legal goods concept has been speeded up to legitimize the protection of universal legal goods. In order to solve these problems, I suggest that the criminal law should be restrained from over-criminalization and to go back to traditional legal principles in criminal law such as "no crime, no punishment", "no legal goods, no crime", "no responsibility, no crime". Also I insist that the integration of basic criminal law and the special criminal-related law for systematization of the criminal legal system.