검색 상세

형법상 간통죄의 헌법적 고찰

A Constitutional Study on the Criminal Conversation in the Criminal Act

박종남 (목포해양대학교 대학원)

원문보기

초록 moremore
Adultery crime is today's social issue and it has also been controversial since the law was enacted. The problem of maintenance or abolition has not been ceased and the controversy has been continued and it is a social issue whenever the adultery cases appeared. This problem is based on two sides of...
Adultery crime is today's social issue and it has also been controversial since the law was enacted. The problem of maintenance or abolition has not been ceased and the controversy has been continued and it is a social issue whenever the adultery cases appeared. This problem is based on two sides of morality and law. The law should not be forced on and encroach upon morality and reason and emotion, internal mind. Actually, the both side of maintenance or abolition is equally-matched in the society, today. However, adultery is in a social·national area. Most criminalists insist on the abolition of criminal conversation, but it does not live up to the public expectation. There are a lot of people who agree to abolish criminal conversation but it is the problem that there are much more people who want to maintain it according to an opinion poll. People who agree to maintain criminal conversation insist that the virginal purity should be kept and the position of women should be secured. Its criminality is also a social problem that should be concerned by nation and it is against the traditional ethics. They say that adultery will be prevalent and good manners will be depraved if criminal conversation is abolished. On the other hand, The repealers of the criminal conversation insist that criminal conversation has been a means of a compensation and inappropriate ethics and it is unfavorable for women. In addition, it has not come up to the change of sexual morality and lost the prevention function of adultery and it invades the decision right of self-sexual in internal mind. Also, it can cause other crime and it tends to be abolished over the world. On the one hand, it does matter to infringes on the decision right of self-sexual over the dignity of man and the right to pursue happiness Article 10 of Constitution. The Constitutional Court recognizes the decision right of self-sexual and the right to decide their own fate includes the right to decide a sexual act and a partner. However, it has an internal limitation in the respect of national·social·general well-being by Article 37, clause 2 of Constitution and the punishment of adultery is the matter of legislators' legislative policy. However, criminal conversation excessively limits the freedom and private secret. It is against excessively the limitation principle by limiting the secret of privacy and freedom, the provision of jail sentence as legal punishment can be exclude or limit the possibility to consider individuality and the particularity of a specific case, so it violates the proportion principle between responsibility and punishment. The point of both sides have a thread of connection with maintenance and abolishment. In the view of constitution, criminal conversation needs to be considered with the basic legal rights that preserved in relation to the basic rights and common benefit. Moreover, the balance between victims and harmers is necessary and the criminal conversation should be on the rational line of human rights and common benefit. The both sexes equality is maintained in law, but self-sexual decision right should not be suppressed. Forgiveness and family preservation is necessary rather than the family is broken by only one mistake. Therefore, criminal conversation should be abolished to prevent the related crime by criminal conversation. Also, it is has a tendency to be abolished over the world. The progress of occurrence and punishment has dramatically declined and the decision of the unconstitutionality for the criminal conversation was dismissed due to the lacke of quorum on 30th of October, 2008, so it maintains constitutionality. Unconstitutionality is expected soon over this trend. On the one hand, bigamy as an alternative legislation should be established and adultery should go to a civil trial and double marriage should go to a criminal trial. Criminal conversation has factors of unconstitutionality. When the way of thinking and awareness for sex is changed and people have responsibility and duty, it does not do people harm to gradually abolish criminal conversation and the society should establish morality.
목차 moremore
제 1 장 서 론 1
Ⅰ연구의 필요성 및 목적 1
Ⅱ 연구의 범위 및 방법 2
...
제 1 장 서 론 1
Ⅰ연구의 필요성 및 목적 1
Ⅱ 연구의 범위 및 방법 2
제 2 장 간통죄와 기본 권리 4
Ⅰ간통죄의 법제사적 고찰 4
Ⅱ 간통죄 존폐론 8
1. 간통죄 존치론 11
2. 간통죄 폐지론 16
Ⅲ 헌법상 행복추구권과 성적 자기결정권 21
제 3 장 간통죄에 대한 법적용 및 판례 분석 26
Ⅰ 간통죄의 발생 추이 26
Ⅱ 간통죄 위헌 제청 현황 29
Ⅲ 간통죄에 대한 최근의 판례 35
1. 대법원 주요판례 35
2. 헌법재판소 판례 38
Ⅳ 간통죄에 대한 외국의 입법례 51
1. 독일 53
2. 미국 54
3. 일본 55
4. 북한 56
5. 그 밖의 입법례 57
제 4 장 간통죄의 헌법적 고찰 58
Ⅰ 성적 자기결정권과 간통죄 58
Ⅱ 간통죄의 헌법적 의미 59
1. 간통죄와 기본적 인권 59
2. 가치와 이익의 조화 60
3. 간통죄에 대한 기본적 인권과 공익과의 조화 61
Ⅲ 간통죄의 헌법적 분석결과의 논의 62
제 5 장 결 론 69
[참고문헌] 72