영아살해죄의 규정과 해석에 관한 비판적 고찰

Abstract

Killing a newborn baby is also the same crime with killing a person, in which both killings involve a violation of the right to life. In the criminal law, however, 'general murder; homicide' and 'infanticide' is strictly distinguished. Some punishment reductions, which are not applied to the general homicide, are defined as in legal provisions in case of the infanticide. In this paper, I would like to admit the needs of infanticide and suggest problems, under a general regulation of infanticide, related to ambiguous conception of 'infant' and accepted usual interpretations about subjective components which are punishment reduction regulations. I also aim to provide various solutions about above problems. Above all, for the criminal law for the infanticide where 'infant' is an object of a crime in the infanticide, we need to impose a punishment according to a clear conception and standard, not just by following commonly used and vague conceptions. Therefore, we must change and make a new regulation for the word 'infant'- it is better to change it into a word 'new born baby' which is newly regulated word by the Mother and Child Health Act. Also, in criminal law, it is appropriate to change words from 'infanticide' to 'new born baby homicide'. The next suggestion is that I personally think that a financial reason is not appropriate punishment reduction condition in violating people's rights to life. I, thus, suggest following basis of arguments. First, according to Article 250 of the criminal law "Homicide', Article 51 of the criminal law "Conditions of assessment of case" and Article 53 of the criminal law "Mitigation of punishment in extenuation of circumstances", any financial reasons or grounds are not included as the reduction in punishment in above articles. Having conditions for the reduction in punishment for the new born baby homicide and including 'financial reason' as the mitigation condition are implying that we are just taking lightly of the right to life of new born baby at the moment. Second, in 2012 Constitutional Court decided that 'Self-induced abortion crime' is not a violation of the constitution. According to the criminal law, the fetus that is still not 'born human' also has the right to life. In case where the new born baby who can be considered as the 'born human' has been decided as to be impossible to be nurtured due to financial reasons and thus to be killed, this is not truly inappropriate to impose a mitigation of punishment. Third, the death with dignity that was accepted in a judgement in 2009, and other various opinions that euthanasia can be socially accepted if some conditions can be satisfied, still do not include financial reasons as a ground of giving up lives. Even in cases where death with dignity and euthanasia are accepted, patients in a phase of irreparable death who prepare his/her own final moment of life are not allowed to choose the death with dignity or euthanasia for shortening the life due to financial grounds. New born babies who have just came into the world and started lives of human cannot be killed by violating their rights to life. Further, dealing with these cases, financial grounds being the mitigation is not reasonable. Overall, I believe that we need to change the vague conception of the word 'infant' as included in the 'infanticide' into a more certain and definite word 'new born baby' so that people can present more clear standard. we, thus, need to amend the legal term 'infanticide' into 'new born baby homicide; murder'. We also should not impose the mitigation when she/he killed new born baby because of financial grounds, expecting 'will not be possible to nurture the new born baby due to financial reasons'. Not allowing any reeducation of punishment will be resonable for these cases.