사회윤리와 정당화사유 - 정당화사유의 체계적 이해와 그 적용에 관하여 -

Abstract

The area of justifications in criminal law is the typical one in which social ethics is used as explicit basis to justify some interpretation or thought of interpreters. Is the attitude like this appropriate by the way? This paper is the attempt to answer that question. And its contents are as follows. First, the author examines discussion state regarding the article 20 of the Criminal Law which seems to be closely connected with social ethics (because that regulation contains the concept of social rule which has very similar character with social ethics). Second, is here treated the problem which relation social ethics has with the other justifications such as self-defense, emergency evacuation etc.. In this is especially examined the issue of restriction on social ethics in regard to each justification. Because that issue shows intensively that justifications and social ethics have a very intimate connection. Finally, this paper summarizes and proposes the core contents derived from the above discussion. In short, it is as follows that the author shows through the discussion above. Namely, it is not proper that the final basis of justifications in criminal law be understood under the dualized perspective(either the spirit of the whole legal order or the social ethics lying behind it), as is so in the present by the majority of criminal law scholars and the judicial precedents of Supreme Court, but proper that it should be understood under the one and same, that is ‘the spirit of the whole legal order’ and that all justifications and their relation be also established based on such an understanding.