대마사용의 비범죄화 주장에 대한 이론적 검토
Theoretical Rewiew on The Decriminalization Of Marijuana Use
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The Act on the Control of Narcotics, Etc. classifies marijuana as an illegal drug, strictly prohibiting manufacturing, importing and exporting, trading, assisting in trade of, giving or receiving, carrying, possessing, or using cannabis. Marijuana has been managed as illegal drugs in international society as well. However, such severe punishment policy globally faces changes. From January 2014, Colorado in the U.S. allowed purchase of marijuana for purpose of smoking, and states decriminalizing marijuana continue to tend to increase. In addition to the U.S., Australia, Holland, U.K., Canada, etc. decriminalized marijuana or prepare places for active discussion on decriminalization of it. In the midst of this global trend, this paper attempted to review the discussion of decriminalization of the use of marijuana which is still strictly forbidden. Given that the world has been showing gradually changed attitude toward marijuana since intensified debate on the decriminalization of marijuana in Korea about a decade ago, this study examined the decision of the Korean Constitutional Court on how marijuana was illegalized. In addition, the legal theory concerning the justification of marijuana regulation was analyzed in this study. As a result, it was concluded that the rulings of the Korean Constitutional Court lack persuasion and reasoning to be still maintained today. It was also found that maleficence of marijuana, gateway effect, relationship with violent crimes, and issues comparing to cigarette and alcohol all of which were presented as the grounds for the regulation of marijuana in the Korean Constitutional Court were difficult to be admitted any more. In addition, when examining the regulation of marijuana in right of the self-determination, the principle of prohibition of excessive and the princple of equality, the legitimacy of the regulation of marijuana is sorely shaken, and cannot be maintained any more. The need to debate on the decriminalization of marijuana again, therefore, seems to be sufficient now.
Abstract
The Act on the Control of Narcotics, Etc. classifies marijuana as an illegal drug, strictly prohibiting manufacturing, importing and exporting, trading, assisting in trade of, giving or receiving, carrying, possessing, or using cannabis. Marijuana has been managed as illegal drugs in international society as well. However, such severe punishment policy globally faces changes. From January 2014, Colorado in the U.S. allowed purchase of marijuana for purpose of smoking, and states decriminalizing marijuana continue to tend to increase. In addition to the U.S., Australia, Holland, U.K., Canada, etc. decriminalized marijuana or prepare places for active discussion on decriminalization of it. In the midst of this global trend, this paper attempted to review the discussion of decriminalization of the use of marijuana which is still strictly forbidden. Given that the world has been showing gradually changed attitude toward marijuana since intensified debate on the decriminalization of marijuana in Korea about a decade ago, this study examined the decision of the Korean Constitutional Court on how marijuana was illegalized. In addition, the legal theory concerning the justification of marijuana regulation was analyzed in this study. As a result, it was concluded that the rulings of the Korean Constitutional Court lack persuasion and reasoning to be still maintained today. It was also found that maleficence of marijuana, gateway effect, relationship with violent crimes, and issues comparing to cigarette and alcohol all of which were presented as the grounds for the regulation of marijuana in the Korean Constitutional Court were difficult to be admitted any more. In addition, when examining the regulation of marijuana in right of the self-determination, the principle of prohibition of excessive and the princple of equality, the legitimacy of the regulation of marijuana is sorely shaken, and cannot be maintained any more. The need to debate on the decriminalization of marijuana again, therefore, seems to be sufficient now.
참고문헌 (36)
- 강태수, "자기위해행위의 제한에 관한 헌법적 고찰", 경희법학, 43(1), pp.17~44 (2008), 법학연구소
- 권영성, "헌법학원론", pp.312~ (2011), 법문사
- 교통관련 범죄의 비범죄화에 관한 연구, "기광도", 한국형사정책연구원, 41~, pp.연구보고서 00-11 (2000)
- 김일수, "형법총론" (2007), 박영사
- 김주일, "대마사용의 가벌성에 관한 비판적 검토: 독일사례를 중심으로", 형사정책, 28(1), pp.181~218 (2016), 한국형사정책학회
- 대검찰청, "2015 마약류범죄백서" (2015), 대검찰청
- 민병로, "헌법상 자기결정권과 후견주의", 법학논총, 32(1), pp.149~174 (2012), 법학연구소[DOI]
- 배종대, "형법, 형벌, 양형 - 성매매특별법의 경우 -", 형사정책연구, 17(4), pp.437~470 (2006), 한국형사정책연구원
- 박상기, "형사정책" (2005), 한국형사정책연구원
- 손동권, "형법총론" (2006), 율곡출판사
- 양천수, "한국형법학의 새로운 지평 (심온 김일수 교수 화갑기념 논문집)" (2006), 박영사
- 오세혁, "법적 후견주의 ― 개념분석적 고찰 ―", 법철학연구, 12(1), pp.153~182 (2009), 한국법철학회
- 오영근, "형법각론" (2009), 박영사
- 윤명숙, "대마사용자에 대한 낙인과 편견 그리고 논쟁들", 한국사회복지학회 학술대회 자료집, pp.291~312 (2005)
- 이보영, "마약범죄 처벌의 정당성", 법학연구, (47), pp.217~238 (2012), 한국법학회[DOI]
- 이얼, "자기결정권 법리의 체계화를 위한 형법학의 과제", 법학연구, 54(4), pp.261~288 (2013), 법학연구소
- 이용식, "형법에 있어서의 이익형량", 서울대학교 법학, 48(2), pp.1~30 (2007), 법학연구소
- 이재상, "현행의 주류적 약물통제정책과 약물자유화 논의에 관한 고찰", 형사정책, (9), pp.215~249 (1997)
- 이재상, "형법총론" (2007), 박영사
- 임웅, "형법총론" (2003), 법문사
- 전지연, "형법형성에서의 법치국가적 원리", 연세법학연구, 3, pp.665~688 (1995), 연세대학교 연세법학연구회
- 전현욱, "중독(中毒)에 대한 정당한 형사정책의 기준과 한계: 불법과 그 주관적 귀속에 관한 형법이론을 중심으로", 형사정책연구, 24(2), pp.187~211 (2013), 한국형사정책연구원
- 허일태, "헌법에 비추어 본 형사실체법의 문제점과 개선방안", 형사법연구, (25), pp.1~26 (2006), 한국형사법학회
- 황태정, "자기결정의 자유와 한계와 관한 형법적 관점", 한국사회연구, 12(1), pp.191~233 (2009)
- Chen K., "The natural history of drug use from adolescences to the mid-thirties in a general population sample", American Journal of Public Health, 85, pp.41~47 (1995)
- Donnelly, N., "NCADA Monograph Series No. 27" (1994), Canberra, Australian Government Publishing Service
- Good, E., "Marijuana: Effects on Human Behavior", pp.303~338 (1974), Academy Press
- Hull, H. G., "Lost in the Weeds of Pot Law: The Role of Legal Ethics in the Movement to Legalize Marijuana", Penn St. L. Rev., 119, pp.333~360 (2014)
- Kandel D.B., "Marijuana users in young adulthood", Archives of General Psychiatry, 41, pp.200~209 (1984)
- Kleinman, M., "Against Excess: Drug Policy for Results" (1992)
- "Is Marijuana Really a 'Gateway Drug'?" (2015)[URL]
- Lynskey, M. T., "Escalation of Drug Use in Early-Onset Cannabis Users vs Co-twin Controls", Journal of the American Medical Association, 289(4), pp.427~433 (2003)
- "Using Marijuana May Not Raise the Risk of Using Harder Drugs" (2002)[URL]
- "Is Marijuana a Gateway Drug?, Marijuana Research Report Series" (2016)[URL]
- Substance Abuse and Mental Health Service Administration, "Initiation of Marijuana Use: Trends, Patterns and Implications" (2002), SAMHSA
- "Is Cannabis a Gateway Drug?" (2015)[URL]