자살에 관한 형법적 고찰

Abstract

The legal sentiment of the people seems to catch up the teachings of wise men that some suicide are essentially free and rational act, furthermore noble, heroic and obligatory act. Meanwhile, the traditional moral sense of suicide has been changed by the emphasis on the patients' right of self-determination according to the shift of biomedical paradigm. Notwithstanding, the new trend does not succeed in breaking the taboo of suicide. Suicide has been considered not a expression of basic human rights or liberty, but as a evil to be avoided and prevented. The right of self-determination on suicide is restricted because of prudent policy of suicide, risk of trend to take human life lightly. Only the skeleton of the right of self-determination based on human dignity remains in the end of life. In many cases, the legality theory of suicide or the legal free zone theory of suicide is supported by the independent crime theory of suicide, but we shall not regard disposal of life as legal conduct or evaluation-suspended conduct. Because the interest of respect for each individual's self-determination right should not accomplished in the matter of life disposal that means destruction of each individual. In the concern of life disposal, both of the right self-determination(autonomy) and life(existence) are violated in homicide, but only life(existence) is violated in the crimes of homicide with consent. Such difference between these two types of crime is the base of reduction illegality and punishment of homicide with consent and suicide participation against homicide. Suicide is illegal misconduct although it has committed on one's responsibility. Because blocking commitment of suicide is completely legal and adequate behavior without composing violence whether suicide is elf-answerable or not. The core of the problem of the crime of aiding and abetting suicide(§252②, Criminal Law) is a rational explanation for the basis of punishability for suicide participation and its commencement of the commission from premises that suicide participation is provided in the same article with murder upon request and homicide with consent and it has same statutory penalty. Although it is the predominant view that suicide participation is a separate principal offense type in spite of the act patterns of committing abetment and assist, actual profit of distinction suicide participation that is provided in the form of accomplice from murder upon request in the form of principal is not inconsiderable. Even though suicide participation is punishable enough by being prepared its special constituent requisite, the dependency of accomplice shall not be disregarded for the reasons of act of committing in the accomplice form of abetting and assist. Criminal Act Aricle 252(Murder upon Request or with Consent)(1) A person who kills another upon ones request or with ones consent shall be punished by imprisonment for less than one year nor more than then years. (2) The preceding paragraph shall apply to a person who instigates or aids and abets another to commit suicide.