형사실체법에서 법익개념과 피해자의 지위 - 해악의 원칙: 형사입법의 제한에 피해자는 기여하는가?

Abstract

The principle that there is no crime without legal interest to protect serves to set the limits of criminal legislation. In such a theory centered on the legal interest, it is not known what function the victim performs in the criminal law. However, in the criminal law regulations protecting individuals, the victim's traces appear in that the person attributing legal interests is the victim, and it is not an active marker of the criminal law. Here is looked at whether the areas that are difficult to solve with the theory of legal interest can be supplemented with the principles of common law system. The “Harm to Others Principle,” which the state sees as the most legitimate purpose of restricting individual freedom to prevent acts of harm to others, presupposes the existence of the victim. Next, Offense theory is a theory that the state's penal intervention becomes possible when the infringement of an individual's special feelings is accepted as a serious infringement beyond the subjective tendency, unlike the moral or ethical violation as a common behavior of a community. While debating whether personal legal interests and ecological or functional- human-centered legal interests should interpret legal interests centered on human interests or expand them beyond that, it was confirmed that the principle of harm and its derivative principle could be solved simply but more clearly. If the principle of harm is accepted, the victim can be determined in any way and the criminal substance law can be restricted centered on the victim, because it can have the effect of limiting the area of crime through crimes of harming interests by determining the category of harm. On the other hand, it was also examined that while the existence of the victim may perform a systematic critical function of restricting criminal legislation on the one hand, there is a concern that excessive crime may be expanded by interpreting and expanding the existing criminal constituent requirements in interpretation centered on the victim. Of course, even if the principle of harm is accepted, judgment based on an individual's subjective emotion of pleasure or displeasure still cannot be a complete solution in that there is a concern of arbitrary interpretation. This paper would be liked to terminate without concluding what is reasonable. Instead, would like to replace the conclusion with the effect that it is necessary to rethink the basis of “what” criminal law should be legislated clearly.