형법 제20조 ‘사회상규에 위배되지 아니하는 행위’의 유형에 관한 연구 - 의무의 충돌과 추정적 승낙의 법리적 해결에 관한 고찰을 겸하여-

Abstract

The ‘social mores’ stipulated in Article 20 of the Korean Criminal Act are general provisions that are difficult to interpret on their own. The legislator who drafted the general part of the Korean Criminal Act defined the concept of social mores as public order and good morals. The idea of determining illegality based on violations of public order and good morals goes against the principle of the rule of law. There is a concern that decriminalization at the discretion of the judge will be allowed if the social mores clause is operated according to the intention of the legislator. However, the Korean Supreme Court provides quite detailed criteria for excluding illegality by social mores. Since the precedents have been repeating the same judgments for decades, it is necessary to analyze these legal principles and refine the scope of social norms. If the types of ‘conduct which does not violate the social mores’ can be compressed based on the theory of precedents, the possibility of abuse of social mores can be minimized. As a condition for applying the provisions of Article 20 of the social mores, the precedent sets out the criterion of ‘being within the scope of the historically created social order as an extremely normal form of life’. Only actions that are universally valid for humans to take, regardless of place or time, are regarded as conducts which does not violates the social mores, and their illegality is excluded. Further narrowing the scope here, the application of the social mores clause should be limited to dealing with areas similar to the previously stipulated grounds for excluding illegality. Only blind spots that are similar to the codified grounds excluding illegality but are not covered by them should be taken into consideration when adding additional exclusion of illegality. ‘Conflict of duties’ and ‘presumptive consent’ are two examples of situations that fit these requirements. The precedent presented the justification of the end, the equivalence of the means, the balance of legal interests, the urgency, and the supplementation as the requirements for conduct which does not violate social mores. These strict requirements are virtually identical to those for emergency evacuation. If there is a case that satisfies all of these requirements and conforms to the universal mode of human behavior, it is necessary to exclude the illegality as equivalent to emergency evacuation. Such cases are the conflict of duties between equal-value legal interests and presumptive consent between equal-value legal interests. These two areas types of conduct which does not violate the social mores. There has always been an argument that these cases become justifiable acts under Article 20 of Criminal Act, and that their illegality is excluded. However, this paper focuses on providing why these types should be excluded from illegality under the Article 20 of Criminal Act.