연구논문 : 학제적 법학으로서 법정신분석학의 과거, 현재 그리고 미래

민윤영 ( Yoon Young Min ) 단국대학교 법학연구소 2014 법학논총 Vol.38 No.4

This article aims at introducing the perspective of psychoanalytic jurisprudence, which is an interdisciplinary approach bringing together law and psychoanalysis, to Korean legal academia. While historically psychoanalysis has, though not widely known, influenced law in the past, for example, in the American judicial system in the 1960s, it is the common belief of modern legal studies that psychoanalysis is not a relevant discipline to the law due to doubts regarding its scientific value. This is, however, not true. The author argues that the psychoanalytic perspective holds a fundamental value in relations to legal studies, not only as one kind of scientific evidences but, more profoundly, by providing a provocative and emancipatory perspective. Psychoanalytic jurisprudence, however, is not receiving the attention that it deserves. This article aims to interpret such lack of interest as resistance from the law towards psychoanalysis. Through analyzing such resistance, it aims to open a new door for the perspective of psychoanalytic jurisprudence to enter into the field of law. Furthermore, it explores the possibility of important contributions that psychoanalysis would bring to the field of law, viewing them as an emancipatory power, helping the law become a more humane institution.

다형적 페르소나로서 법 -낙태의 자유와 잊혀질 권리를 예로 하여-

민윤영 ( Yoon Young Min ) 고려대학교 법학연구원 2011 고려법학 Vol.0 No.61

This article introduces Jung`s analytic psychology as a new referential point for analyzing legal issues. Among Jung`s analytic psychology, this article focuses especially on his theory concerning the relationship between Persona, which is the outer personality presented to others socially by an individual, and inner personality. This theory is expected to be relevant when applied to jurisprudence, as the law of ``person`s can be understood as the law of ``persona`s. This article is based on the understanding that human life is created through the performance of diverse personas. Therefore, it claims that as a human right, plural and even mutually contradicting personas should be recognized by law. As persona, which originally means the mask worn by Greek actors, has an intrinsic power to induce narrative and storytelling, permitting diverse personas should be recognized as a condition for guaranteeing human rights. Furthermore, this article insists that guaranteeing diverse and contradictory, yet balancing personas will form a basis from which new justice, which restores the primordial Archetypus of human kind, will be produced, different from the existing justice which is achieved through unified and coherent legal order. From these theoretical points of view, the need to recognize the persona of prostitution and that of abortion is claimed. However, it is not without limit to recognize diverse personas. The work of guaranteeing personas should be performed in harmony with existing legal principles. Lastly, bearing in mind Jung`s warning that identifying with one`s persona is symbolically the same as death, this article suggests an analysis that law functions as pharmakon in regards to the identification with persona. Law has an essential attribute of causing the individual to identify with his persona, while it also works to prevent identification with one`s past personas. This preventive aspect of law is discussed more with the right to be forgotten as an example which is appearing as an important right in this digitalized era.

가정 내 아동고문 범죄에 대한 시론적 고찰 - 미국의 아동고문(child torture) 범죄를 중심으로 -

민윤영 ( Min¸ Yoon Young ) 한국형사정책학회 2021 刑事政策 Vol.33 No.1

본 연구는 미국의 아동고문 관련 입법례에 대한 고찰을 중심으로 극단적인 반인륜성을 보이는 아동학대범죄에 부합하는 새로운 법적 개념으로서 아동고문 개념을 제안한다. 가정 내 아동고문은 최소한 두 건의 신체적 폭행과 두 가지 이상의 유형의 심리적 학대 그리고 방임이 종합된 상당 기간 동안의 학대로서, 장기적인 고통이나 영구적인 손상, 기능장애, 또는 사망에 이르는 것이라고 할 수 있다. 아동학대와 아동고문은 가해자의 의도와 학대행위의 가혹성 등에서 구별되며, 최근의 양천구 16개월 입양아 학대사망사건 등의 극단적인 아동학대범죄는 학대를 넘어선 것으로서 아동고문 개념이 더 적합할 수 있다. 전통적인 고문에 대한 이해에서 볼 때에는 가정내 아동고문이라는 사적 고문은 성립되기 어려운 개념이지만, 국제인권법 담론이나 법여성학 담론에서는 이미 비국가 고문 개념을 통해 가정폭력 등을 사적 고문으로 재해석하고 있으며, 이는 아동학대의 맥락에서도 유용한 논리를 제공한다. 미국의 입법례에 대한 고찰로서는 아동고문을 처벌하고 있는 미국의 주법들의 현황과 심각한 신체적 상해가 없더라도 아동고문에 해당할 경우 중범죄로 처벌할 것을 촉구하는 미국변호사협회의 결의문, 그리고 델라웨어 주의 아동고문 공통요소표를 살펴본다. 마지막으로 아동고문 개념의 필요성을 극단적 아동학대범죄의 반인륜성에 부합하는 정의로운 처벌과 보다 효과적인 피해자 보호, 그리고 아동학대인지감수성의 고취와 관련하여 논의한다. This article focuses on overcoming a deficit in Korean child abuse law by introducing the concept of domestic child torture. While child torture is not a legal term in Korea, there have been child abuse cases that have been too extreme to be properly captured with the term “abuse”. The lack of an appropriate legal term has led to inadequate prosecution of these crimes, criminal punishments that did not match the magnitude of the acts, and in many cases, the deaths of the victims. While it might seem controversial to label child abuse by a private actor as torture, the term “non-state torture” in the context of domestic violence has gained acknowledgment in the international legal community. This article extends this logic from feminist legal theory to the issue of child abuse. Additionally, it takes a comparative legal approach by introducing child torture laws and other relevant legal discourses in the U.S., such as ABA Resolution 109D and Delaware’s Common Elements of Child Torture list. Finally, it discusses the moral and practical importance of reframing severe domestic child abuse as domestic child torture with regard to achieving justice and protecting child torture survivors.

일반문담 : 법의 새로운 기초로서 동물권 담론

민윤영 ( Yoon Young Min ) 법과사회이론학회 2011 법과 사회 Vol.0 No.41

This article deals with animal rights discourse and Sigmund Freud`s theory of primordial horde in relation to the interdisciplinary study of law, mythology and animal studies. Animals became invisible from human life following modernization and rationalization. However, since the 1970s, animals have come back into the philosophical discourse, evoking changes in law. The rapid growth of animal rights discourse is one of the impressive examples of those changes. There is a possibility that this phenomenon might be interpreted as the restoration of mythological thinking, which rendered animals as intrinsically familiar beings to humans, since granting rights to animals inevitably makes the status of animals closer to that of humans. If we can say that the essence of animal rights discourse has deep connections to mythological thinking, the law which develops animal rights cannot help but reflect on its rationality-centered traditions. Because, for human reason to be established, mythological thinking was repressed and accused of being pre-modern. In here, animal rights discourse might contribute to a new proposal for the basis of law. This article analyzes the treatment of animals as ``thing`` metaphors in law, and tries to address psychoanalytical reasons why such a metaphor was formed and maintained and what kinds of problems it could bring. Furthermore, the author also discusses Freud`s case studies, zoologists` intersubjective experiences with animals, and Gilles Deleuze and Felix Guattari`s theory of ``animal-becoming``, in regards to grounding new concepts of legal personality. These theories contribute to the establishment of the concept of relational personhood in diverse dimensions-both unconscious and conscious-and to the expansion the status of legal personhood to animals. Lastly, the article briefly addresses the meaning of Freud`s theory of primal horde, which Lacan called modern myth, in relation to jurisprudence.

한국의 부부간 심리적 폭력의 실태와 형사정책적 함의

민윤영(Min, Yoon Young) 한국형사정책학회 2017 刑事政策 Vol.29 No.3

This article aims at improving Korean criminal justice policy on domestic violence through adopting Evan Stark s theory of coercive control. It introduces U.K. s Serious Crime Act 2015 which fully implemented Stark s concept of coercive control into its criminal law regime, and compares its underlying philosophy with that of Korean domestic violence laws. It also discusses the result of 2016 national survey which examined the reality of psychological violence between spouses in Korea in light of coercive control. Additionally, it analyses the meaning of psychological violence between spouses through the concept of necrophilia from Fromm s psychoanalysis, in order to argue further the importance of understanding the concept of coercive control for the improvement of Korean criminal justice policy on domestic violence issues.

특집 : 동성혼 합법화에 대한 법정신분석학적 고찰: 심리적 양성성 인정과 정상가족 이데올로기의해체를 중심으로

민윤영 ( Min Yoon Young ) 법과사회이론학회 2013 법과 사회 Vol.0 No.45

The issue of the legalization of same-sex marriage demands complex discussion which invites not only legal arguments but also psychoanalytical insights. It is because this issue involves deep psychological problems such as sexuality or fear towards one`s own unconscious instincts. This article asks the question whether the dichotomy between heterosexual love and homosexual love can be maintained from a psychoanalytical perspective which admits human psychological bisexuality. The author locates this question at the center of the issue of legalizing same-sex marriage. After exploring this dichotomy from a psychoanalytical perspective, this article concludes that the dichotomy between heterosexual love and homosexual love cannot be held, and therefore, neither can the dichotomy between same-sex marriage and heterosexual marriage be maintained. The legal dichotomy between same-sex marriage and heterosexual marriage is shown to have been maintained by the State in order to control the human resources that are produced through procreation within a heterosexual marriage. The article then proceeds to argue that the legalization of same-sex marriage is a problem that affects not only those who are marginalized due to sexual orientation but also everyone who is suffering under the ideological conception of gender role. It is because the author believes that the legalization of same-sex marriage, based on the recognition of psychological bisexuality, will have the effect of weakening the ideological conception of gender role, which has ruled as the superego for everyone in a civilized society. Furthermore, the article relates to the deconstruction of the ideology of a normal family. The normal family ideology, which forms the triangle of ‘marriage-procreation-family’, has the problem of exclusive inclusion. While certain selected forms of relationship, which match the normal family ideology, are protected under the law, other forms of intimate relationships are discriminated against and excluded. This article claims that the legalization of same-sex marriage should go together with the deconstruction of the normal family ideology in order to overcome the risk of exclusive inclusion. The normal family ideology has other problems as well, such as the discrimination of children born outside of marriage, leading to the heightening of the abortion rate. Such arguments are also dealt with in the article in relation to the legalization of same-sex marriage. The author concludes with a vision of a more humane society where individuals have the freedom to fully embrace one`s bisexuality, which would lead to the humanization of the institution of marriage by promoting gender equality, and also where more diversified forms of intimate relationship would enjoy legal protection through the deconstruction of the normal family ideology.

드워킨의 『법의 제국』에 대한 니체 철학적 의문

閔允令(Yoon Young Min) 중앙법학회 2012 中央法學 Vol.14 No.3

This article aims at a critical reading of Ronald Dworkin`s Law`s Empire through Nietzschean philosophy. The purposes of this work are twofold. One is to propose a new reading of Law`s Empire to identify where Dworkin`s legal theory would be located within the broad spectrum of (legal) philosophy. The other is to introduce the German philosopher Nietzsche into the arena of legal philosophy. Nietzsche is highly respected as a philosopher who opened the era of post-modern philosophy. For legal theorists, however, Nietzsche is not a familiar thinker. In the field of legal philosophy, the philosophy of rationality, such as Kantian or Hegelian thinking, dominates. Dworkin`s Law`s Empire is part of this tradition. This article claims that giving balanced attention to both of those two different streams of philosophy, Kantian rational philosophy and Nietzschean post-modern philosophy, is essential for the field of legal philosophy to have a productive future. Dworkin`s theses at issue here are the thesis of law as integrity, the theory of constructive interpretation, the one right answer thesis and chain novel theory. Dworkin`s legal theory presumes that a society as a political unity can speak in a single voice about the notions of political morality such as justice or fairness, which leads to the law as integrity. This premise is critically conceptualized by Raz as ``univocality``. The article focuses on attacking this univocality of Dworkin`s thinking through Nietzschean and Derridian philosophy. Dworkin dreams of the law as a coherent grand narrative, which achieves absolute integrity through constructive interpretation, which becomes possible by the power of reason possessed by human judges. That is why, for Dworkin, judges are the princes of the empire of law. Such a grandiose grand narrative of an empire inevitably silences the voices of minorities and the marginalized. We must listen to the distant voices of those ``others``, which hold truth but were silenced and excluded in the course of creating a coherent grand narrative, One of the ways Nietzschean philosophy can contribute in critically reading Dworkin`s powerful Law`s Empire lies here: guiding us to listen to those muted voices which will lead us to the new grounds for justice. For that purpose, this article compares Dworkin`s ideal judge Hercules to Nietzsche`s Ubermensch, and Dworkin`s method of constructive interpretation to Derrida`s idea of double reading. While Dworkin`s Hercules writes a grand narrative following the univocality of a society, Nietzsche`s Ubermensch deconstructs the grand narrative and gives breath to those thousands of different stories and voices which were hidden and erased behind the grand narrative. Finally, this article suggests an imaginative new genre of literature "Stories Quilt" as the better analogy for law, in contrast to Dworkin`s chain novel theory.

가정폭력범죄로서 강압적 통제의 법적 수용에 대한 고찰

민윤영(Min, Yoon Young) 한국형사법무정책연구원 2021 형사정책연구 Vol.126 No.-

감정노동과 인간의 존엄성 문제에 대한 기초법학적 고찰

민윤영 ( Min Yoon Young ) 단국대학교 법학연구소 2016 법학논총 Vol.40 No.3

이 글은 감정자본주의 하에서 감정노동에 의한 근로자 인격에 대한 광범위한 침해를 여성학, 사회학, 심리학, 정신분석학 등의 학제적 관점에서 분석하고, 현재의 법이 진상고객의 문제에 천착함으로 인해 이러한 광범위하고 구조적인 인격적 침해를 충분히 포착하지 못하고 있음을 지적하였다. 나아가 이러한 법의 한계를 가져오는 법의 패러다임들을 ‘심신이원론-이성중심주의-과학주의의 패러다임 삼각형`으로 개념화하고 비판적으로 검토하였다. 마지막으로 강압적 통제론을 바탕으로 하고 있는 영국과 프랑스의 심리적 폭력 관련 법을 소개하고, 순수한 심리적 침해를 법적 개념으로서 적극적으로 활용하는 것을 제안하였다. 또한 감정적 자기결정권이라는 새로운 인권 개념의 형성을 고민하는 등 감정노동자들의 존엄성과 인권을 보장하기 위한 새로운 법적 시도들을 시론적으로 제안하는 것으로 논의를 마치고 있다. This article starts with understanding the spectrum of violations of human dignity of workers engaged in emotional labor through interdisciplinary approach, applying insights from feminism, psychology, sociology and psychoanalysis. And then, it argues that current Korean legal system fails to capture such violations thoroughly as it narrows its focus to violent consumers and ignores the more problematic norms of emotional labor, which coerce workers to commodify their own emotion and personhood and to participate in unequal human interactions by building a network of control around workers. It proceeds to consider law`s three paradigms as obstacles to recognize such harmful structure: mind-body dualism, rationalism, and scientism. Lastly, it suggests more active use of the concept of psychological injury in the field of law, drawing insights from psychological violence laws in France and the UK. It also proposes to explore the concept of emotional self-determination as a new human rights concept.

일반 논문 : 인터넷 상에서 잊혀질 권리와 「개인정보보호법」에 대한 비교법적 고찰

민윤영 ( Yoon Young Min ) 고려대학교 법학연구원 2011 고려법학 Vol.0 No.63

이 글은 현대의 인터넷 사회에서 개인정보의 이용이 어떻게 이뤄지고 있으며 현재 우리가 어떤 새로운 법적 도전들에 직면해 있는 것인지를 살펴보고, 기록을 기본 모드로 하는 인터넷 시대에 역행하여 ``망각``을 다시 보장하고자 하는 ``잊혀질 권리``의 법적 의미를 고찰한다. 또한 잊혀질 권리와 망각의 중요성을 중심에 두고 올해 제정·시행된 「개인정보보호법」을 1995년 EU 정보보호 지침, 그리고 최근 제안된 EU 정보보호 지침의 개선점들과의 비교 속에서 이해해보았다. In this era of internet, legal communities are facing new challenges which approach at a rapid pace. Massive privacy violations due to the online exposure of personal data are included among those. New risks regarding data protection systems are provoked by the recent developments in IT technology, such as cloud computing or social network services. The year 2011 has been important for global data protection efforts. Korea, which maintains one of the strongest IT infrastructures, has recently enacted the Personal Information Protection Act, and the EU is preparing a revision of its 16-year old Data Protection Directive. Additionally, the transatlantic clash between the U.S. and the E.U. regarding data protection is embarking on a new harmonious phase. This article highlights legal and sociological grounds for systematic and stronger legal regulation with respect to data protection; also, it aims to look deeply into the emerging legal concept, ``the right to be forgotten``. The right to be forgotten can be interpreted as a movement which counters recording tendency of contemporary society, which is enabled by internet technologies. This right can also be understood as an attempt to guarantee ``forgetfulness``, formerly considered to be the basic mode of human thought, to individuals and societies. This forgetfulness functions in both dimensions-individual and social, as the precondition for freedom. Bearing these notions in mind, this article attempts to analyze the current Personal Information Protection Law by comparative study with the EU`s Data Protection Directive and its proposed revision.