피해자의 승낙의 사회윤리적 한계

1. The socialethical limititation of justification according to Section 24 of Korean Criminal Code without legal ground is not contary to the principal 'No Punishment Without a Law', because 'the socialethic'(Section 20 Korean Criminal Code) as a general principal of justification is the guideline of all grounds of justification including the consent of the injured person(Section 24 Korean Criminal Code). 2. So long as the meaning and the scope of application of uncertain term 'socialethic' are made concrete in due consideration of the purpose of Section 24 of Korean Criminal Code, the application of such a term as a constitutional interpretation is not contary to the principal 'requirement of certainty' or 'prohibition of analogy'. 3. According to the theory of weighing of interests the offense against socialethic must be affirmed, if the disadvantages of criminal act such as the interests of legal community outbalance the advantages of criminal act such as the right of self-determination. 4. The interest of legal community means according to the tabu-idea the general preventive interest in avoiding committment of serious bodily injury. Consequently the socialethical limitation of justification through consent must be restricted to the serious bodily injury(Section 258 Korean Criminal Code). 5. In case of weighing interests the ethically prohibited motive may not be taken into account, otherwise the bodily injury can be misused for protecting moral purpose that has nothing to do with the legally protected interest, which leads to the so-called 'motivational criminal law'(in german 'Gesinnungsstrafrecht'). 6. The Judgement of Korean Supreme Court that because of the motive of insurance fraud the consent of the injured person can not justify the bodily injury, can not avoid the critic that the judgement does not correspond to the requirement, the term 'offense against socialethic' in conformity with the constitution to interpret.