독일과 한국에서의 낙태의 규범적 평가에 관한 비교법적 고찰

Abstract

Criminal law prescribes abortion as a crime. The criminal abortion means such behaviors as artificially discharging a fetus from the mother’s womb or a killing the fetus within the mother’s body. The abortion politics have been differently appeared according to the social moods and political situations of the countries. The moral and legal status of the human fetus and the corresponding question if the moral permissibility of abortion are issued today in modern democratic countries. The Germany Constitutional Court ruled that a state is under an abortion to protect a fetus as a human life according to article § 1 (1), § 2 (2) of the Constitution, and a pregnant woman dose not have a right to an abortion. Only if she has a proper cause - for instance, in the case of that she is in the serious danger of her life or health -, she can abort a fetus after passing through a consultation with a doctor. In Germany through the decisions Constitutional Court confirmed unconstitutionality of abortion in principle clearly. It looks like impossible for the two different standpoints to access close each other because of fundamental differences in thoughts and recognition. The problem of abortion is whether it is harmony with constitutional structure, that is, he fundamental values of democratic republic. The human dignity among all constitutional values is at the top of constitutional hierarchy and surrounded with many fundamental rights to realize it. The right of life is an essential part of human dignity, the life of fetus is virtually all in the fetus’ dignity. Abortion can be justified in one exceptional situation only when the situation of continuous pregnancy threaten the woman’s life seriously. However the abortion can’t be justified for the woman’s healthy simply because the concept of health very broad and abstract. Abortion can not be justified as self defense or the defense of necessity provided that it is not inevitable to save the pregnant woman, because the right of life of the innocent human fetus is more important than that of the woman’s liberty, or privacy. The present korean abortion law does not have a chance to judge whether abortion clauses(§ 269 of the Criminal Code which provides a ban on an abortion and § 14 of the Mother and Child Health Act which provides exceptional permitting cause of an abortion) are unconstitutional or not. But in Korean society abortion is a normal and widespread procedure a considerable number of women experience and is ever increasing but the law, as it stands, still categorizes abortion as “criminal operation”, therefore making abortion in Korea, for the most of part, illegal. In fact, many women have abortions relatively freely in the society without any legal punishment. Most people do not regard abortion as a crime any longer, nevertheless the criminal law still treats it as a crime. Such a disparity between public attitudes and law seems likely to make people distrust and disobey the current law. Therefore, more sincere examination of the current law on abortion is required.