정당행위에 대한 대법원 판단기준과 법이론적 분석

• 영문명: The Supreme Court's Judgment Criteria for Just Acts and Legal Theoretical Analysis
• 발행기관: 한국형사판례연구회
• 저자명: 최호진(Choi, Ho-Jin)
• 간행물 정보: 『형사판례연구』제30권, 93~126쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2022.06.30

영문 초록

This thesis analyzes the concept of social norms in Korean criminal law and the legal characteristics from the point of view of the criminal system theory in a legal theory. It is a work to materialize the independent meaning and type of social norms. Since the concept of social norms has the nature of a general clause that requires value charging, it can be a dangerous concept with the possibility of arbitrary judgment, so it is necessary to materialize the meaning of the concept. The Supreme Court stated that ① the motive or purpose of the act was justified, ② the appropriateness of the means or method of the act, ③ the balance between the interests of protection and the infringement, ④ urgency, and ⑤ the subsidiarity requirements as criteria for judging a just act. there is. This thesis analyzed the legal theory of each judgment standard suggested by the Supreme Court in the partisan act. The frequent use of an indeterminate concept or a value-filled concept in criminal law is embarrassing not only to researchers but also to defendants in criminal courts. This is because it is difficult to predict specific judgment results. It is undesirable to develop into a judicial law by neglecting the fluidity and apathy of the concept of social norms used in the process of judging legality and illegality. Even if the concept of social norms, which has a general clause character, inevitably requires a judge's supplementary value judgment, the rationale for the theory of law must be thoroughly demonstrated.

목차

Ⅰ. 서 설

Ⅱ. 행위의 동기나 목적의 정당성

Ⅲ. 행위수단과 방법의 상당성

Ⅳ. 법익균형성

Ⅴ. 긴급성

Ⅵ. 보충성

Ⅶ. 마치며

키워드

정당행위 사회상규에 위배되지 않는 행위 사회상규 형법해석 불확정개념 일반조항 Justifiable Act action which does not violate the social rules the social rules Criminal Law Interpretation Undefined legal term general clause