21세기 대한민국 안보형사법의 의의, 특성 그리고 위험형법과의 조우

A Study on the Concept and Distinctive Characteristics of the National Security Laws of Korea: A Comparison with Risk Criminal Law (Risikostrafrecht) This article examines the concept and distinctive characteristics of the national security laws in South Korea and compares its characteristics with those of a new form of law, called “Risk Criminal Law (Risikostrafrecht)” and ““Symbolic Criminal Law (Symbolische Strafrecht).”” In contrast to traditional criminal law, Risk Criminal Law refers to the type of criminal law related to “risk” and was created to minimize risk to the future safety of society. Symbolic criminal law is regarded as not effective for preventing harm but rather related to the pursuit of political goals. National security laws of Korea primarily protect the safety and security of South Korea under the constitutional protection of the free democratic order and capitalistic economic order based on private ownership. They also protect international peace, especially from terrorism under the Prevention of Terrorism Act 2016.Although South Korea’s national security laws seem on the surface to have similar characteristics with risk criminal law and symbolic criminal law, there are important and broad distinctions between these.The risk reduced by South Korea’s national security laws differs from the risk of risk society (Risikogesellschaft) in the following ways: (a) the risk related to risk society are new, while the risks related to South Korea’snational security have been present since the beginning of the nations(b) the risk related to risk society are related to modernity and the industrial revolution, while the risks related to South Korea’s national security are not related to modernity and the industrial revolution (c) South Korea’s national security risks primarily affect neighboring countries and lastly, (d) the risks related to risk society are not socially constructed and are more clearly definable, unlike the risks related to South Korea’s national security. Even terror risk, which is a type of risk against national security, is regarded as a typical type of risk related to risk society. This differs from the other risks of risk society, including environment pollution, climate change, and threats to food safety. This article concludes that the generally-accepted critical perspectives on risk criminal law—which challenge the basic principles underlying traditional criminal law, including the rule of law, the harm principle, and the culpability principle— don’t seem appropriate for the purposes of review and discussions on South Korea’s national security law. Rather, it is recommended that the legitimacy and fairness of South Korea’s national security laws be reviewed on a rule by rule basis.