긴급구조적 고문에 있어 위법성 조각가능성 - 독일 Daschner 사건에서 정당방위의 인정가능성을 중심으로 -

Should the inviolability of human dignity in the Constitution be without exception guaranteed even to one who damaged human dignity oneself? This question is raised as a dilemma about whether to tolerate incomparably great sacrifices for the human dignity of a cruel criminal in the face of a crucial terror or crime, or whether to terminate the urgent danger by restricting the human dignity of the criminal. In the German Daschner case, judicial punishment was imposed on the policemen who located a kidnapped child by threatening to torture his kidnapper in order to save his life. The case shows that grounds for justification were obscured by the inviolability of human dignity and the absolute prohibition of torture. The behaviors of Daschner and his colleague meet the requirements for the extortion of statements in the German criminal law, but can be justified as those of self-defense or emergency rescue for the third person. It is clearly admitted that the doers had a defensive intention. A present unwarranted intrusion existed, as a boy was kidnapped and imprisoned. And the actual defense act was not a torture, but simply “a threat to torture". This was a method that only caused a suitable and necessary minimum violation to identify the location of the kidnapped boy. The kidnapper confessed the location of the boy with the threat only. Hence, the matter in question was merely the socio-ethical suitability of the defense act. In the case, it was especially important whether the human dignity of the criminal was violated. The majority of opinions support the absolute inviolability of human dignity, but there are also convincing views according to which human dignity can be exceptionally restricted in extreme circumstances, such as the case. The Constitution designates both a duty to respect human dignity and the state's duty to protect human dignity. In the Daschner case, the criminal violated not only the human dignity of the kidnapped boy, but also the boy's right to life which is the same as or higher than the right of human dignity in value. This makes it possible to socio-ethically justify the behaviors of the policemen who aimed to actively protect the dignity of the boy. After all, their acts can be recognized as those of self-defense. However, the boy had already been dead, when the policemen's behaviors occurred. Accordingly, the behaviors correspond to those of defense by error, which were caused by mistakes against defense circumstances. But the law effect restrictive responsibility theory, commonly accepted, makes it impossible to charge the doers with intentional responsibility. After all, it is likely that their extortion of statements constitutes a negligence offense. However, the German criminal law has no regulation to punish the negligence offense. Therefore, the doers could be declared innocent according to a view that human dignity is restricted in exceptional circumstances. The Daschner case overlooked the factors justifying the policemen's behaviors by clinging to the great principles, i.e. the inviolability of human dignity and the prohibition of torture. It is required to have a forward-looking attitude toward the case.