형법철학 사상사를 통해 본 현대 안보형사법의 의미와 과제

As shown by “National Security Act” (“Gukgaboanbeop”) and “Act on Anti-Terrorism” (“Tereobangjibeop”), there is a huge debate on whether it is necessary and legitimate to use criminal law as a means of ensuring national security. This applies not only to Korea, but also to most Western democratic countries. At first sight, this may seem strange, because there has been no state which does not have penal provisions to protect its own existence. But when we consider the meaning and purpose of state punishment in the context of an intellectual history of modern criminal law, it becomes clear that a fierce debate on the legitimacy of penal law protecting national security (Staatsschutzstrafrecht) is a normal occurrence. Doctrines and theories of modern criminal law are mainly based on the Philosophy of the enlightenment which refuted the classical natural law ideas and established social contract theory that sees raison d'être of state power in its function of ensuring the freedom of individuals. Accordingly, they have designed a liberal and constitutional “theory of legally protected interests” (Rechtsgutslehre) which conceives basic human freedom as “legally protected interests of individuals” (Individualrechtsgüter) and limits the task of criminal law to protecting these interests. Of course, Rechtsgutslehre also recognizes “legally protected interests of society as a whole” (Universalrechtsgüter), since the protection of these interests is essential for the development of individual freedom. In other words, Universalrechtsgüter are derived from Individualrechtsgüter, and not the reverse; penal provisions protecting Universalrechtsgüter criminalize the preparatory stages of a crime, so that they can be justified only if they contribute to guaranteeing Individualrechtsgüter. It is therefore no wonder, why in democratic countries there is a vehement debate on Staatsschutzstrafrecht which safeguards state that is furthermost from Individualrechtsgüter. Recently, however, liberal Rechtsgutslehre is being shaken by increasing demands on public security, which correlate with the threat of Islamist terrorism that aims to destroy Western liberal democracies. Proponents of Staatsschutzstrafrecht allege that liberal Rechtsgutslehre is not able to counteract the international terrorism and must thus be replaced by preventive theories which make it possible to fight effectively against terrorism; they propose to produce penal provisions to criminalize the preparation of terrorist acts. But it should be stressed that such proposals are hardly compatible with a liberal concept of state that regards state not as an end in itself but rather as an instrument for guaranteeing individual freedom; they curtail civil liberties without significantly contributing to combating terrorism. Therefore we should use criminal law as ultima ratio in the field of fighting terrorism, just as in other areas. This does not mean that criminal law could neglect the risk of terrorism, but rather that we should know exactly where the reason and limits of protection of state by criminal law lie, if we want to prevent anti-terrorism law from turning into anti-liberty law.