個人의 自己決定權과 非犯罪化에 관한 硏究

Abstract

The modern society in Korea is recognized as having various risk factors due to the rapid development of technology and the change of socio-economic basis. Due to these universal spread of awareness and the uncertainty and unpredictability of social relations, ordinary citizens have been demanding a strong social safety net, and in order to respond to this, the state has taken control of even individual deviant behavior by intervening in society as a whole. As a means of control about that, the criminal punishment with a strong sanctionary nature has been imposed, and in the personal private area, acts that do not involve concrete infringement have been also defined as crimes. As such, the modern society in Korea, which has been under the almighty criminal law, has reached the overcriminalization. However, the law, especially the criminal law, suppresses the freedom of the individual as the prohibition standards of act, and the punishment as a means of it has an evil character, depriving the individual’s life and the freedom of the body. Therefore, the criminal law is justified only in case of protecting important legal interests. Here, the important legal interests are personal legal interests. In order to protect these personal interests, the existence of society and the state is a prerequisite. As the essential value to maintain that function, the criminal law protects in the name of social benefit. The problem is that the provisions for the protection of social legal interests prohibited even the act of personal area. That’s because, the highest law, the Constitution, assures the individual’s right to self-determination. In criminal law, self-determination means ‘the right of an individual to freely form his or her own life area by self-determination without regard to interference or infringement from the society or the state regarding ones’ private sphere’. Thus, conflicted areas have been arisen between the protection of social interests and the assurance of self-determination. The most controversial crimes in these areas are gambling, drug self-use, voluntary prostitution, and molestation on the military criminal law. Abortion is the main protection of the fetus’s right to life, but it has included in the discussion because it is a crime with fierce debate in respect of self-determination. Most of these crimes are characterized by limiting the freedom of the actor, even though there is no victim who is infringed by specific legal interests except the actor oneself. Therefore, it is an important point to evaluate whether the social legal interest that is set as a protection benefit is worth being protected with limitation of the self-determination right of constitutional fundamental right. However, it is not simple to judge whether the protection interests and self-determination are superior. This is because social benefits are abstract and indefinite concepts in its nature. In this paper, in order to judge whether the logic of “decriminalization for the guarantee of self-determination” and “criminalization for the protection of social legal interests” is valid, as a grounding criterion, the concept of self-determination, the self-imprisonment principle of criminal law, the purpose of punishment, and the debate about the legal compulsion of morality were examined. Based on this, the validity of decriminalization by comparing and analyzing judgments on crimes related to self-determination and decriminalization discourses was examined. In this process, the inadequacy of the protection of legal interests, the excessive inequality between the legal interests of protection and the right of self-determination were confirmed, and it was concluded that the state punishment power to the crimes under review was excessive. In addition, based on the principle of “in dubio pro libertate”=‘Even after all consideration has been given, if the legitimacy remains questionable, it is right to give up penal control in exchange for individual freedom’, which is the basis of the modern criminal law, the desirability of criminal law in Korean society is as follows. First, in the area of morality, the state should be withdrawn by respecting individual autonomy. Second, the intervention type of the paternalism based on individual autonomy should not be criminal punishment. Third, the restriction of self-determination through balancing between social benefit and self-determination should be avoided. Fourth, the authoritarian attitude to regulate and control only by law should be avoided, and find a solution within social base. Fifth, the best crime countermeasures are prevention through education and support. Above all, emphasizing that the criminal law and the modern ideology of punishment, which have been erected at a great deal of historical cost, should never be faded, this researcher tried to reconsider the zero-tolerance thinking and the tendency of harsh punishment policy of Korean modern society.