‘2019년 헌법재판소 낙태죄 결정’ 분석과 ‘낙태죄 형법조항’ 개정방향 제안

Abstract

The first half of the paper analyzed the contents of the 2019 Constitutional Court abortion decision, and dealt with the problem of balance. In the Constitutional Court’s decision to abortion in 2019, minority opinions directly embraced absolute human dignity in the fetal life value, while majority opinions did not directly use absolute human dignity. However, among the majority opinions, four opinions linked the right of self-determination with human dignity, and the three opinions used the sentence that led to the protection of fetal life from human dignity. The majority of opinions of the Constitutional Court in 2019 led to the unconstitutionality of abortion, but in terms of argumentation, there are more inconsistent aspects than the 2012 Constitutional Court‘s decision. In the 2012 Constitutional Court‘s decision to abortion, both the majority opinion and the minor opinion did not appear in the concept of human dignity. The problem of abortion should be viewed as the benefit of the right of life and the right of self-determination. Self-determination of a pregnant woman and Fetus’s Life should not be directly or indirectly linked to human dignity. In the latter part of the paper, I would like to suggest improvement of the revised criminal law from my point of view. I claim the combination of the period model and the justification model. In the first half of pregnancy abortion is justified according to the period model. In late pregnancy abortion will be based on the justification model. I see the time when the brain is functioning and the sensory ability develops in the fetus as the starting point of the right of life, and use this point as the reference point for the period model and the justification model. After the brain functions and the sensory ability develops, the fetus is given status as the subject of life. The Constitutional Court’s decision in 2019 focused on the self-determination of pregnant women who had been marginalized. However, if the criterion is the ‘determinable period’ until the 22nd week of pregnancy, the right to life of the fetus may be infringed. But if the period of abortion is reduced and social-economic reasons are not included in the justification, the possibility of abortion will be greatly advanced. It may turn out that the abortion rule of the Criminal Code will lose its effectiveness. There is a dilemma in the Abortion Code of Criminal Law.