한국형법 개정의 올바른 방향 -형법총칙을 중심으로- = Revision of the Criminal Law of the Republic of Korea in the right direction

다국어 초록 (Multilingual Abstract)

Criminal law that was enacted in 1953, the middle of the war, has been amended about the small part. But the essential revision isn`t still accomplished. Criminal law in 1953 gave top priority the stability of nation and society order maintenance which are not suitable for the today`s society. Korea in 1950 was based on the agricultural economy and the rural community was majority. But today, korea turns to information and communication society, national life and cultural level developed to the high level which is essentially different in 1950. According to the social change, there was a request about the basic revision of criminal law in 1980`s already and the revision work has been performed for 7 years under Ministry of Justice`s support and Criminal law amendment was submitted to National Assembly in 1992. But the passage of National Assembly about criminal law amendment didn`t accomplished because people opposed strongly the abolition of adultery that is a part of criminal law amendment in 1992. The strong request about the revision of criminal law in 2005 makes ministry of justice to comprise law advisory committee about revision of criminal law. The committee, which consists of 24 members, promoted revision of criminal law from June 2007. The partial criminal law amendment including the criminal law general rules and etc. was submitted to National Assembly at April 15th, in 2010. But as the session of the 18 national assembly ended May 1992, criminal law amendment fell into disuse by the automatic. Nevertheless, the revision work was still going on and it came to a finish not only criminal law general rules but also criminal law particulars rules. Through these process, the committee tried to make criminal law amendment to the ideal criminal law that is matched for the constitutional principles such as rule of law and responsibility principles and meet the demand of modern criminal theory and criminal policy. but it is not easy to find out big change in the criminal law amendment excluding the actualization of fine, severity of some crime such as robbery resulting in injury which is not inappropriate. There is still problems as follows, the retention of the death penalty and detention, the change of terms about probation, the partial restriction of discretionary mitigation by judge, the aggravation for sexual offence, the abolition of crime subject to complaint and some special criminal law`s inclusion in the criminal law general rules. The retention of the death penalty is contradictory to the ethics of nation. Discretionary mitigation by judge has to be restrictive admitted. The limit of imprisonment has to be 20 years as a rule. Total fine system has to be turned to day fine system. The accommodation for probation has to be abolished. The abolition of criminal law general rules about preparation and plot has to be abolished and preparation and plot is admitted restrictedly on serious crime. All regulations about offense aggravated by consequence has to be abolished.

참고문헌 (Reference)

1 김혜정, "형의 가중 및 감경사유에 대한 검토 - 작량감경 사유를 포함하여 -" 한국형사법학회 23 (23): 33-58, 2011

2 신동운, "형사법령제정자료집(1) 형법" KIC 85-, 1990

3 許一泰, "형법연구 Ⅵ" 동아대학교 출판부 234-, 2012

4 김기춘, "형법개정법률안"

5 박달현, "형벌의 목적과 행형의 목적의 관계" 한국형사법학회 19 (19): 811-832, 2007

6 김동림, "형벌의 목적과 한계" 11 : 243-,

7 "헌재 2001.11.29, 2001헌가16결정" 13 (13): 570-, 2001

8 "헌재 1989.9.8. 88헌가6결정"

9 이주원, "특별형법" 弘文社 1-, 2011

10 허일태, "죄형법정주의의 연혁과 그 사상적 배경에 관한 연구" 법학연구원 (35) : 115-148, 2011

11 신동운, "제정형법의 성립경위" 한국형사법학회 (20) : 9-52, 2003

12 허일태, "제정형법의 기본사상과 기초이론" 한국형사법학회 (20) : 53-88, 2003

13 강대웅, "우리나라의 특별형법의 문제점과 개선방안" 전북대학교 대학원 2006

14 한정환, "예방목적의 통합형벌이론(상)" 39 (39): 7-,

15 한정환, "예방목적의 통합형벌이론(상)" 40 (40): 12-,

16 朴剛旴, "사회변화와 형사입법의 정당화조건" 29-30, 2012

17 이덕인, "사형제도의 정당성에 대한 비판적 검토" 한국형사정책학회 23 (23): 277-300, 2011

18 황치연, "과잉금지원칙의 제문제" 20 : 463-, 2009

19 조상제, "결과적 가중범의 제한해석" 박영사 (3) : 40-, 1996

20 변종필, "결과적 가중범에서 기본범죄가 미수인 경우, In 형법해석과 논증" 세충출판사 26-, 2012

21 정영일, "결과적 가중범" 국가고시학회 53 (53): 20-, 2008

22 허일태, "간통죄의 위헌성" 한국법학원 (104) : 118-135, 2008

23 배종대, "‘특별’형법을 ‘보통’형법으로 만들기" 한국형사정책학회 18 (18): 9-20, 2006

24 "http://blog.naver.com/agenda0630?Redirect=Log&logNo=150036316049"

25 "1995년 12월 29일 법률 제5057호"