불법적 · 반윤리적 목적의 승낙과 상해

• 영문명: Bodily Injury with Illegally or Immorally Purposed Consent
• 발행기관: 한국형사판례연구회
• 저자명: 황태정(HWANG, Tae-Jeong)
• 간행물 정보: 『형사판례연구』형사판례연구 제19권, 74~106쪽, 전체 33쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2011.06.30

영문 초록

A subject of demand on appropriateness in accordance with social rules is thought to be the most important at behaviors by the consent. In other words, estimate of the action by criminal law shall be discussed not by an actor s internal will but by infringement upon legal interest at outside world. Either purpose or motive of the one who has infringed upon legal interest with consent shall not be considered at the estimate of appropriateness of social rules. Therefore, the subject that shall limit consent by social rules shall be not motives and purposes of the consent but ‘an action that infringes upon legal interest’ in accordance with the consent. What type of infringement upon legal interest does limit justification? The problem is related to ‘scope’ of the demand on appropriateness of social rules. Unless special provisions which punish crimes such as murder and abortion regardless of consent, Article 24 of the Criminal Act shall be applied to the crimes of all of private legal interests considering legislation purpose and systematic position. Majority of the scholars think that infringement upon legal interest of other crime types than aforementioned crimes require appropriateness of social rules, and ‘bodily injury’ with consent can be of problem. Considering various kinds of spectrum of bodily injury, the discussion has reached ‘degree’ of demand on appropriateness of social rules, in other words, scope of the permit of bodily injury subject to the consent. The value and specialty of legal interest of bodily injury subject to the consent can be discussed: But, medical treatment for beauty care, minor bodily injury and others that have minor bodily injury with consent of entity of legal interest need not be protected by the Criminal Act. When bodily injury subject to the consent jeopardizes existence of legal entity to threaten life or equivalent and to be serious, punishment against the action is thought to be admitted despite consent. Article 258(Aggravated Bodily Injury) of the Criminal Act can be used for reference.

목차

Ⅰ. 사실관계

Ⅱ. 판단

Ⅰ. 들어가며

Ⅱ. 형법 제24조의 입법취지와 성립의 제한

Ⅲ. 현행법 규정의 문제점과 해석방향

Ⅳ. 사회상규적합성 요구의 범위, 정도와 대상

Ⅴ. 대상판례의 검토 및 결론

키워드

불법적 목적 반윤리적 목적 승낙 상해 위법성조각 Illegal Purpose Immoral Purpose Consent Bodily Injury Justification