간통죄 규정을 통해 본 문화적 정체성 보호와 형법

Criminal interest in the modern criminal law is based on the liberalistic criminal interest. However, it is recently doubtful, whether the conception of criminal interest is useful for argumentation of criminal policy. The intention of this paper is to show the limitation of criminal interest and to build relationship between cultural identity and criminal prohibition through adultery. The culture at this paper means a culture as specific and multiple conception, neither universal civilization nor culture as an art. Discussion about cultural identity and criminal law begins from such a culture. Criminal interest of adultery are sexual morality, marriage system based on monogamy and sexual sincerity duty between married couples. It is discussed around three criminal interests, whether adultery should be maintained or abolished. This discussion concludes that adultery in criminal law cannot be explained clearly through the liberalistic criminal interest. Instead, the adultery can be understood as the cultural provision, through that the marriage system based on gender equality is protected. Here, this argumentation returns to the relationship between criminal law and morality, for the adultery is connected with the major culture. This core morality acquires legal legitimacy from objective constitutional order. The adultery obtains the criminal legitimacy from objective order of basic rights that guarantee marriage system and gender equality as well.