형법 제20조 사회상규의 적용범위: 정치영역에서의 한계사례를 중심으로

Abstract

In spite of the ambiguity of the concept of ‘social rule’, the provision of social rule under Korean Criminal Law is regarded as a norm to be upheld in the paper. This is because the benefits of the provision of social rule cannot be overlooked although it has drawbacks as well. In addition, social rule can play a role in protecting cultural norms and values as a justification in the current society where pluralistic cultural values emerge. We, however, should have a thorough consideration when applying the provisions to specific cases for the following reasons: social rule needs to be distinguished from social reasonability which should be considered at the stage of addressing Tatbestand; it should be applied only to complement other individual justifications which should be first applied, and; its application should be limited to excluding the illegality of an act rather than acknowledging the illegality. From this perspective, the judgments of the representative cases of civil movement which are highly controversial over the applicability of the provisions of social rule are discussed here in the paper. Generally, the court judgments of civil movement cases are controversial, because the degree of infringement of the cases on legally protected benefits is relatively serious and civil movement itself is a political act based on conflicting interests between different parties involved, thus raising an issue of the applicability of the provisions of social rule as a legal-cultural norm. However, the illegality of the cases regarding civil movement can be excluded for the reason that it is “an act which does not violate social rule”, in consideration of the fact that the fundamental constitutional rights which acknowledge the liberal democratic value can be ingrained by the provisions of social rule, and that legal-cultural values with a specific relevance to the changing social context can also be acknowledged by the social rule provisions. There are, of course, some cases which are not appropriate to be subject to the exclusion of the illegality of their act: anti-campaign against a candidate for an election, consumers’ boycott campaign against a product, and candlelight protest in which individual or collective violence is exhibited, and; civil movement which has no purpose for the benefits of the public but simply for a group’s interests. However, even if the illegality of the aforementioned acts is recognised, provisions under the criminal law other than those of social rule should be applied to these cases. When applying the provision of social rule to a specific case, we need a thorough consideration. The provisions should be applied only to exclude the illegality of an act rather than to acknowledge the illegality conclusively. If the provision of social rule is applied in this way, the provisions of the fundamental constitutional rights can be strictly and precisely considered and it can also perform a role to draw a legislative decision on a controversial issue during the process of interpretations on criminal norms. As the cases of candlelight protest show, the provision of social rule has just established but it can still function as preventing the provisions under the criminal law from prejudging a collective act which can be possibly established as a part of civil culture in a democratic country.