형법해석・적용에서 규범적 평가기준의 활용과 논증의 문제 -이른바 대법원의 ‘종합적 판단기준설’을 대상으로-

Abstract

This paper treats the necessity and propriety of Supreme Court's standard of comprehensive evaluation which is totally used not only in interpretation- application of criminal law, but also in that of other laws. In addition, it covers as basic issues for progressing such a discussion the evaluative character of criminal law and its elements, the necessity of normative evaluation in the criminal law interpretation and its application, the inevitability of (rational) arguments in grounding such normative evaluation standards etc.. In the light of the discussion results, the standard of comprehensive evaluation is verified in spite of its necessity as a normative evaluation standard to have many serious problems, for example, such as its uncertainty, the absence or poorness of argumentation in using it. The two plans are proposed to respond such problems in this paper. The one is not to use that standard anymore as a criterion of normative evaluation. And the other is firstly to admit its necessity and then, as a complementary method for reducing relevant problems, to make the judges provide proper arguments in using that standard. It's my opinion that it is to some degree inevitable for now to choose the latter in the respect of elements such as its status, role, practical implication and so forth. But nevertheless, I think that such standard should not be used any longer in legal practice if the judges do not observe the duty to provide rational arguments faithfully in using it in the future, and the other way found.