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형법 제269조 제1항 헌법불합치 결정에 따른 낙태죄의 법제정비 방안
강지현,민영성 부산대학교 법학연구소 2020 법학연구 Vol.61 No.1
On April 11, 2019, the Constitutional Court in Korea ruled that punishment for abortions violated the self-determination rights of the pregnant woman. This gives us the opportunity to revise the law on abortions again 66 years after the abortion crimes were defined in the Criminal Code. Should abortion be punishable as a criminal offense? In order to derive reasonable legislation for abortions, we first analyze the grounds for the recent decision of the Constitutional Court on abortion crimes. Next, we look at the attitudes of discipline on abortion in other countries and draw out the problems of our existing legislation. Thus the role of criminal law to prevent abortion is considered. The Constitutional Court has made relatively specific statements on the direction of the overall amendment, regarding the possible durations of abortion - 12 and 22 weeks - and the recognition of social and economic reasons. It did not require the legislator to give up punishment in order to protect the life of the fetus. However, punishment is a means that can be considered as a last resort because of its intrusive nature. Abortions can in principle be reported illegally and punishable. But abortions within a certain period should exceptionally be recognized as the fundamental rights of pregnant women. An abortion within the first 12 weeks of pregnancy is permitted without explanation. Counseling on abortion is essential. Counseling promotes the responsibility of pregnant women for fetal life and provides information on social and economic support. There is an urgent need to improve the laws and institutions related to abortion. The relevant provisions of the Penal Code should be revised in a timely manner and adopted with regard to the reasons for the adaptation and the obligation to consult. To reduce abortion, it is more effective to promote social assistance for pregnant women than punishment.
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