위법성조각사유의 체계 및 경합에 관한 연구

The Korean Penal Code prescribes five provisions as a justification, for example, the “Justifiable Act” in Article 20, “Self-defense” in Article 21, “Necessity” in Article 22, “Self-help” in Article 23, “Consent of Victim” in Article 24. As for justifications, I’d like to make some comments on (1) a conception of the “Social Rules” and an inner structure in Article 20, (2) a systemic relation between Article 20 and the other provisions, (3) a problem in connection with the application of law in the case that justifications over two are to co-exist (especially the conflict of Article 20 and Article 24). To begin with, on Article 20, it is that an act which is conducted in accordance with Acts and subordinate statutes, or in pursuance of accepted business practices, or other action which does not violate the Social Rules shall not be punishable. However in relation to the inner structure of Article 20, there are opposing opinions : (1) the frist opinion is that acts in accordance with Acts or in pursuance of business practices are an example of the “Social Rules”. (2) the second opinion is that three acts are separated from one another and are arranging in a row. And in relation to an conception of the “Social Rules”, the opinion (1) and the Supreme Court understood that the “Social Reasonability” which is originated from Germany as a meaning of the “Social Rules” in Article 20. But these ideas bring about the disorder of the judgement on the crime-constituting condition and illegality, because the “Social reasonability” notion is in close connection with the constituent elements of crime. So it is undesirable that Article 20 is regarded as the inclusive provision. But both opinions do not solve a matter of the functional disorder and inconsistency which the “Social Rules” of Article 20 induced. That reason is as follows. Article 20 and Article 24, both are related to the “Social Rules”. To begin with, the function of “Social Rules” of Article 20 is to offer a ground for the justice of an action. but as different from the former, “Social Rules” of Article 24 is limited a possible extent of “Consent of Victim”. So that both functions are in opposition. Though it is a logical contradiction that two conflicting functions are in one conception. In conclusion, to solve this matter of the functional disorder and inconsistency which the “Social Rules” of Article 20 induced, it is reasonable that Article 20 is rescinded in the Penal Code.