공동체주의 관점에서 형법이론의 새로운 구성을 위한 시도

• 영문명: The attempt new constitution of criminal law theory from the perspective of Communitarianism
• 발행기관: 한국형사정책학회
• 저자명: 류전철(Ryu, Chenchel)
• 간행물 정보: 『형사정책』刑事政策 第26卷 第2號, 169~196쪽, 전체 27쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2014.08.31

영문 초록

The main issue of traditional criminal law is to secure individual liberty by establishing the reason and limitation of punitive authority. The background of this traditional criminal law is the constitutional democracy whose political philosophy principle is liberalism. In the liberalism, it is fundamentally important to secure the individual liberty, in particular, the liberty through which individuals are able to design and correct happy lives. Therefore, liberal nations should adhere to a kind of neutrality when citizens pursue their virtues. If nations are not neutral, they may infringe into the dignity of human. Such a liberal perspective also shows the tendency to secure the liberty of individual from excessive punitive authority on the premise of opposite composition of individual liberty and national punitive authority. And this theory of criminal law is still supported and seems to be valid in these days. However, it is the problem that the theory of criminal law with liberal tendency may disrupt the role and function of criminal law in the modern society. For example, the position of Supreme Court and common view which acknowledge the occurrence reason of aid duty for abandonment very narrowly can be recognized as liberty-directed interpretation rather than social community. In addition, the economic criminal law area such as criminal tax-evasion or fraud of national subsidy results in liberal perspective-dominated theory of criminal theory and its application also gives rise to the negative result, a crack of social community. This paper attempts to base the constitution of criminal law theory on ‘communitarian’ perspective discussed as a method to solve the problems occurred due to restriction of traditional theory of criminal law in the political philosophy. In the individual or social benefit and protection of the law area such as economic criminal law area, abandonment and sex crime, which are often biased toward liberty of actor, the interpretations of crimes regarding sexual customs and forgery related with public trust are developed by newly reorganizing the existing theory of criminal law from the communitarian perspective.

목차

Ⅰ. 들어가는 말

Ⅱ. 자유주의와 공동체주의

Ⅲ. 공동체주의의 관점에서 자유주의 형법의 한계

Ⅳ. 자유주의 형법에 공동체주의적 자유주의 관점의 접목

V. 나가는 말

참고문헌

Abstract

키워드

자유주의 공동체주의 형법 경제형법 유기죄 Liberalism Communitarianism Criminal Law Economic Criminal Law and Abandonment