분만 중 또는 분만 직후의 영아살해범죄에 관한 실무상 문제와 해결방안

The Korean criminal law prescribes that a person who commits infanticide shall be punished on charges of infanticide, the crime of causing death to a baby by abandonment, and the crime of resulting death from child abuse. This article examines some of the dilemmas entailed by infanticide cases from the viewpoint of a legal practitioner. The Criminal Act imposes heavier punishment on the crime of causing death to a baby by abandonment, which constitutes a crime that resulted in unintended consequences by the agents’ purposeful criminal conduct (“consequential aggravated crime”), compared to infanticide, which constitutes an intentional crime. Under the Act, a case where infanticide is committed by means of abandonment, during or right after delivery, is punished more heavily, compared to a case where the crime was committed by other means. Yet, in practice, infanticide is sentenced with heavy penalty, contrary to the gravity of the statutory penalty thereon. In addition, the Act on the Punishment of Child Abuse Crimes prescribes aggravated punishment for the case in which a protector of a child results in the death of the child by committing special cases of child abuse crimes, defining the crime of abandonment of a baby as one of the types of the special cases of child abuse crimes. However, imposing punishment, which is heavier than that of the crime of causing death to a baby by abandonment under the Criminal Act, without specific indications of elements of crime, is against the responsibility principle; and is lacking in legitimacy and balance, thereby making it unconstitutional. The unconstitutionality issue must be resolved through legislation; yet, even before legislative action takes place, a court must render constitutionally restrictive interpretation to remove any unconstitutionality therein. This article proposes a way to resolve the imbalance in sentencing for infanticide and for the crime of causing death to a baby by abandonment, which is: (a) repealing the crime of abandoning a baby and punishing it on charge of infanticide, irrespective of the methods of the crime; and (b) raising the statutory penalty for infanticide in view of the circumstances at the time of enactment and the current situation. Finally, infanticide, like other crimes, must be eliminated from our society; however, imposing severe punishment by means of a special law on some types of infanticide, whose methods of crime are no different from other types, is not a fundamental solution to the problem. Furthermore, it violates the principle of equality, and is not legitimate under criminal law and the constitution.