샤리아형법의 태형에 관한 고찰

A recent case that a woman was sentenced to whipping punishment for breach of Shari'ah by drinking in Malaysia has brought Islamic law that is still unfamiliar to us to our attention. However, there is a lack of knowledge about Islamic law as well as Islam in Korea, and it is not easy to find basic materials about them. While whipping punishment is a premodern punishment that disappeared in the early 20th century in Korea, it is one of admitted punishments in many Muslim countries, and is especially used as main punishment in Shari'ah criminal law. Shari'ah is one of important elements to realize Islam and has Quran, Sunnah,Ijma and Qiyas as sources of law. Shari'ah criminal law is called as ‘al-Uqubat’and punishments of Shari'ah can be divided into three categories in a broad sense such as hudud, ta'azir and qisas. Hudud is a punishment set by Quran and Sunnah,and ta'azir is a punishment whose examination of an offence may be determined at the discretion of a hakim. Most modern Muslim countries are implementing Shari'ah criminal law by ta'azir. Meanwhile, whipping punishment is stipulated as a necessary punishment against sex offenses, firearms and narcotic crimes in criminal law in Malaysia. In relation to Islamic law, as legislative power is delegated to state governments by the Federal Constitution of Malaysia most of them have enacted and are implementing criminal offences enactments of Shari'ah criminal law by ta'azir,and whipping punishment is stipulated as one of main punishments against breach of religious precepts such as sex offences and drinking etc. The Religious Judicial Matters Law that is the basic law of Shari'ah in Indonesia only regulates family, inheritance and civil areas but has no regulations about punishment. However the state of Aceh that is vested with a broad right of autonomy stipulates whipping as punishment against gambling, sales of liquor, drinking,sex offences and breach of Islam percepts in qanun, which is its autonomous enactments. In relation to whipping punishment in Shari'ah as well as general criminal law,there have been a lot of disputes in the aspect of human rights, and especially Malaysia and Indonesia have been heavily criticized for having exercised whipping against women who breached religious precepts. Meanwhile, the governments and conservative Muslims in Muslim countries advocate whipping punishment arguing that it is effective for education and prevention of crimes. Therefore, this paper emphasizes that we need to first understand environmental factors surrounding whipping punishment such as history and social structures of Muslim countries,tradition of Islamic law and people's feeling toward laws etc. before criticizing Shari'ah punishments. In addition, it is necessary to study basic principles of Shari'ah and positive laws of Muslim countries empirically from a jurisprudential point of view as well as from a Islamic point of view.