‘분만 전 태아’의 법적 지위와 형법적 보호가능성 - 대법원 2007. 6. 29. 선고 2005도3832 판례 평석 -

An abortion is not an up-to-date theme in the criminal law; however it is still a timely issue to deal with. Although various issues on abortion were discussed so far, it is true that they have been confined to pro and cons of abortion, the effectiveness of abortion law, or dichotomy between a pregnant woman’s right to self-determination and the protection of fetus rather than on the ‘fetus’ itself. The judicial precedents regarding ‘the legal status of the fetus in its pregnant mother’ and ‘the issue of whether it would constitute a battery on pregnant women’ are very rare but they are worthy of notice. In this article, I wish to examine the legal status of fetus under the Criminal Law. In particular, I will discuss the benefits that the abortion law purports to protect, the issue of whether the fetus’s legal status needs to be changed depending on the stage of pregnancy, and the time when a fetus starts to be considered a human being under the law. After that, I also discuss the difference in criminal liabilities at each stage. Because the time, methods, and/or purposes of accouchement (or abortion) should be considered in order to determine the fetus’s legal status, I focus on the issues as to the ‘mens rea’ requirement of criminal abortion law and the legal interest protected by the criminal abortion law. Finally, legal evaluations and future agenda as to these follow.