낙태죄 헌법불합치결정 및 입법개선방향에 대한 고찰 – 헌재 2019. 4. 11. 선고 2017헌바127 결정과 관련하여 -

Abstract

On April 11, 2019, the Constitutional Court declared it unconstitutional to the abortion clause of the Penal Code, which prohibits abortion. The constitutional decision was made on August 23, 2012, but it has changed in seven years. It is meaningful because it is a decision based on the worldwide decriminalization trend of abortion. However, the Constitutional Court did not make a simple unconstitutional decision(Opinion of three judges) to immediately abolish the provisions of abortion, and on the premise that abortion would not be allowed once a certain period of pregnancy had been reached, the Court made a constitutional discordance adjudication(Opinion of three judges) that continued to apply until December 31, 2020. Constitutional discordance opinion and unconstitutional opinion in this case, unlike the previous constitutional decision, saw that the state can vary the degree of protection or the means of protection depending on the stage of human life development. This means that it not only recognizes the right to life of the fetus but also considers the exercise of the right of self-determination by the expectant mother. As a result, countries can determine the means and extent of life protection for certain abortions before they reach 22 weeks of gestation, in which the fetus can have its own viability. Although the issue of abortion is a case of conflict between the right of self-determination and the right of life of the fetus, the constitutional discordance opinion (also unconstitutional) stated that the application of excessive prohibition principle, not the practical concordance, applies to the provision of self-abortion. However, in the process of applying the principle of proportionality, the debate on the judging criteria occurred by seeking a solution based on the principle of practical concordance. I do not believe that the constitutional discordance adjudication in this case is justified because it continues to apply the penal code that has been confirmed unconstitutional. Even if there is a great concern about the legal gap that a simple unconstitutional decision will bring, and the demand for legal stability is significant, it should have been sentenced to a constitutional inconsistency decision to be suspended. On the other hand, the claimant applied for unconstitutional confirmation of the entire sentence of Article 270 (1) of the Criminal Code, but the Constitutional Court limited the object of the judgment to the “doctor” in the above provisions. However, the judgment of the unconstitutionality of the ‘korean medical doctor, midwife, pharmacist, and drug merchant’ section also applies the same judging scale as the ‘doctor’ part, so the judges should be extended to the whole of Article 270 (1) of the Criminal Code to declare unconstitutionality together. Parliament, which is obliged to enact legislation, must then enact a new legislation no later than December 31, 2020. Thus, the debate over illegal abortion is not over. The site has been moved to the National Assembly and is still in progress. The parliament of the Republic of Korea should refer to the legislation of each country, gather opinions from all walks of life, and make legislation appropriate and fast. Thus, this paper introduces an overview of the decision of the case, examines the main issues of the decision in detail, considers the meaning of the decision, and proposes a legislative task of Parliament.