형법의 기능변화와 한계에 대한 성찰

It is natural and reasonable for Criminal Law to be changed according to changing times and trends. Above all its precondition should be met, in order to examine to tell right (proper) from wrong (improper) of functional changes of Criminal Law. When it comes to it, whether Korean society is indeed dangerous or not and whether the dangers in the society are more increasing or not, compared with in the past should be the standard. As examined earlier, the conceptual consensus that functions of Criminal should be changed is not enough in the matter of dangers of Korean society. And also the evaluation that the degree of dangers is definitely increasing, compared with in the past seems not to be well-grounded. Moreover principles of Criminal Law such as ‘ultima ratio principle’ and ‘principle of complementarity’ have been used as the best or optimum means, with no thought of thorough verification of other security systems in the society and possibility of specific applications accordingly in the process of discussion with justification of Criminal Law’s intervention in the risk society. Main reasons of these results are not reflect severely and critically about problems which a variety of modification of Criminal Law might bring to, which turn out to be serious. Therefore the differences between reality and theory of Criminal Law should be examined in detail and essential consideration of the justification in the criminal legislation has to be preceded. The fact that roles and duties of criminal jurists is increasing means that it is time to require the change of consciousness whatever functions of criminal jurists are, namely whether it is a leader of function changes or a critic resisting the changes. Moreover it makes criminal jurists ask themselves whether they accomplish their duties while the functions of criminal laws are being changed.