자기결정권 법리의 체계화를 위한 형법학의 과제

Abstract

The Criminal Law is the strictest means used by the state to protect the freedom of its citizens, while at the same time, it is a means to directly restrict individual freedom. Due to this nature of the Criminal Law, the Study of Criminal Law can provide the basis for the guarantee of individual Self-determination as well as its restriction, but the fact of the matter is that this discipline has mostly focused on its restrictive role to date. However, with the idea of Self-determination propagating and the legal principles of Self-determination becoming more systematic, it is becoming increasingly more important for the study of criminal law to fulfill its role of protecting individual freedom and rights. In other words, it is necessary for the study of criminal law to progress into a direction in which the individual Self-determination is respected further. In order to respect the individual Self-determination as much as possible, the following must be fulfilled. First, for criminal laws which protect the legal interests of the individual Self-determination such as the one on rape and individual Sexual Self-determination, for instance, there must be efforts to seek measures to reinforce these laws. For example, the factors of sexual assault crimes should be specific and subcategorized according to the method and degree of infringing upon this right, based on which reasonable statutory punishment should be imposed. Second, for Criminal Laws that restrict the individual Self-determination such as the laws regarding Abortion, Adultery and Prostitution, the legitimacy of the provisions in question should be reviewed and if it is determined that they are not justifiable, bold actions must be taken to abolish such provisions. For instance, in case protection of the legal interests of ‘Sexual morality’ with respect to ‘Adultery’ is not deemed to satisfy the concept of legal interests in terms of Criminal Law or it is deemed that the protection of individual Sexual Self-determination take precedence over the protection of Sexual morality, then it is desirable to decriminalize adultery. These efforts in the Study of criminal law will contribute to the systematization of the legal principles of the Self-determination, through which the ultimate goal of the idea of Self-determination, which is the guarantee of individual freedom and rights, can be reached.