위법성 판단은 반드시 양단적이어야 하는가?

This paper deals with problems in the contemporary context regarding the binary mode of illegality, which is one of the most fundamental characteristics of modern legal systems. It is related with the increasingly blurred and uncertain boundaries between legality and illegality. Nevertheless, the legal outcomes result in all or nothing despite minor differences in the degree of illegality contingent upon how the boundaries of legality and illegality are established. This unjust consequence is exacerbated by the progressively escalating legal responsibilities imposed on illegal actions, which seems to be the tendency in the contemporary society. To approach these issues in detail, this paper initially overviews the historical background leading to the binary mode of illegality and its change in the present times. And it examines the problems of binary judgment of illegality especially in the field of liability laws represented by torts and criminal laws. Lastly, the paper argues for the recognition of illegality as a matter of degree and suggests the consideration of a proportional allocation of responsibility corresponding to the degree of illegality. However, acknowledging that a strictly proportional approach might exacerbate problems such as the burden of judgment, increased discretion, and diminished predictability, the paper proposes exploring an alternative: a three- or four-tiered approach that combines binary and proportional methods for determining illegality.