구조를 위한 고문에 대한 비판적 고찰

Since 9.11 international terrorism has been discussed in the dimension of justification and excuse in criminal law. In the meantime, the theory of justification and excuse as a theory applicable against this exceptional cases has not been developed in Korea. In this viewpoint, the legal responses against the attacks against the hijacked aircraft and torture to save a life (Daschner Case in Germany) could be very interesting debates with regard to the theory of justification and excuse in criminal law. In this paper especially the possibility of the scheme of the so-called “defensive emergency (Defensivnotstand)” will be examined. The heated debates in Germany regarding Defensivnotstand will be introduced and their meaning in the future discussion in Korea will be analyzed.A critical Review on Rescue Torture It was generally accepted that the state has no authority to legalize acts of torture, whatever the circumstances. There was consensus that ‘Rescue torture’ infringes the dignity of the human being, because torture aims to instrumentalize the victim for preventive ends. A majority of scholars argue that, as a matter of principle, ‘Rescue torture’ could not be justified or excused by the fact that it is applied in order to prevent the death of innocent persons. This view was based on two main argument. First, the dignity of the human being is inviolable under any circumstances, and torture is the most severe violation of human dignity. Secondly, any exception to this position would implicate the risk of abuse and open the door to dangerously slippery slope. According to the opposing view, the application of ‘Rescue torture’may be justified or excused if it is the last resort to prevent the death of innocents. This opinion was mainly based on the assumption that the ommission of torture in situation like the Daschner case infringes the human dignity of the hostage or the victim of the terrorist attack. It was submitted that not only does torture itself violate human dignity of the kidnapper, but the ommission of torture also infringes the human dignity of the hostage. According to the this view, the conflict between the dignity of the kidnapper and the dignity of the hostage has to be resolve in favour of the latter. Torture is a crime under domestic law and, even if it is resorted to in order to coerce a person to provide information required or expected to save innocent life. As a consequence of the absolute ban on torture under international and national law, grounds for excluding criminal responsibility such as defence of another person or necessity cannot be based on the life-saving motives of the perpetrator. In criminal law, this position follows from a human rights-oriented interpretation of the requirement that the act of self-defence or necessity be ‘reasonable’. ‘Rescue Torture’is always unreasonable, however ‘good’ the motives of the torturer may be. However, the specific and altruistic motivation of the perpetrator may only be taken into consideration of the sentence. Here the ‘guilty, but not to punished’verdict of the Daschner Court provides an example of how to strike a balance between conflicting interests.