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간통죄 위헌결정에 대한 연구: 집단적 법감정의 변화에 대한 헌법재판소의 설시를 중심으로
김종현 ( Jong Hyun Kim ) 법과사회이론학회 2015 법과 사회 Vol.0 No.50
The Constitutional Court decided that Article 241 (Adultery) in Criminal Act infringes sexual self-determination and secret and right of privacy and violates the Constitution. This decision has affected our society very deeply, and pros and cons are in conflict with each other. Also, in this decision, the justices provided a concrete instruction about various positions related to legal emotions of the public on adultery. Thus, this study summarized preceding studies of the decision of this case and looked into the main point of the Constitutional Court concerning legal emotion. As a result, the following was found: First, the justices very specifically instructed a variety of awareness of legal emotions of the public regarding adultery; second, the majority opinion and the dissenting opinion contained incompatible details about legal emotions of the public regarding adultery; and third, the supportive opinions on adultery law’s unconstitutionality including the majority opinion did not present corroborative evidence that could support changes in the legal consciousness of our society. In the decision of this case, the supportive opinions on adultery law’s unconstitutionality mentioned changes in the legal emotions without presenting empirical corroborative evidence as a result of the following interrelated reasons: Most of the empirical data like the results of the surveys were not favorable to the abolition of adultery, the Constitutional Court had made a decision of the constitutionality of adultery over four times, the decision was closely related to legal emotions and ethical beliefs of the public, and in particular, it was an issue regarding punishment, and the Constitutional Court had attached importance to whether there were changes in legal emotion about adultery since before. Since collective legal emotion has a character as a fact which can be found empirically and experientially by majority rule, there is a concern for the likelihood that the discord shown by the majority opinion and the supportive opinion on unconstitutionality concerning legal emotions of our society concerning adultery may weaken trust in the written decision. In addition, considering the following facts comprehensively, in the decision of this case: The supportive opinions on adult law’s unconstitutionality presented sufficient grounds for an argument; the essence of adjudication on the constitutionality of statutes is, rather than conformity to the majority’s legal emotion, the protection of the fundamental rights which should not be infringed even by that; and the justices that have more information about laws than the general public do should present a different opinion depending on the issue, it is not considered that supportive opinions on adultery law’s unconstitutionality should have considered changes in the legal emotions of the public regarding adultery. Also, supportive opinions on adultery law’s unconstitutionality would have been more persuasive if it had presented empirical data as complementary evidences rather than predicating entire change of legal emotions without corroborative evidence.
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