존속살해죄-높은 심리적 장벽을 넘은 사람에 대한 책임비난

Korean criminal law imposes aggravated punishment for parricide against a lineal ascendant, treating it more severely than ordinary homicide. This has traditionally been justified by the influence of Confucian ethics and the cultural emphasis on filial piety. However, the constitutionality of such aggravated punishment remains a subject of ongoing debate, especially regarding its compatibility with the principles of equality and proportionality under constitutional law. In contrast, Japan declared its parricide provision unconstitutional in 1973 and formally abolished it through a legislative amendment in 1995. This study conducts a comparative legal analysis of the treatment of parricide in Korea and Japan and reexamines the theoretical foundations for its aggravated punishment under Korean law. Two main theories have traditionally justified the harsher punishment for parricide: the unlawfulness-intensification theory and the responsibility-intensification theory. The former emphasizes that parricide infringes not only on the legal interest of life but also on moral and familial order, thereby constituting a more serious violation. The latter focuses on the heightened blameworthiness of the offender, based on the perceived immorality and social condemnation associated with killing a parent. However, both theories face critical limitations. The unlawfulness-intensification theory relies heavily on moralistic assumptions that may not align with the modern principle of legality, while the responsibility-intensification theory lacks a concrete standard for evaluating increased culpability. To overcome these limitations, this study introduces the concept of a "psychological barrier" as a new normative basis for assessing the offender’s degree of responsibility. This barrier refers to the internal psychological resistance that precedes a grave normative violation, particularly when the victim is a lineal ascendant. Parricide, more than any other form of homicide, involves a severe inner conflict between social norms and personal emotions, and overcoming this resistance may indicate a significantly greater breakdown of self-control and normative consciousness. Thus, the psychological barrier can serve as a substantive factor in evaluating blameworthiness, thereby providing a more precise and principled justification for aggravated punishment. This is a concept unrelated to the unfilial motive of the parricide act, which constitutes a mitigating circumstance in sentencing. This approach finds philosophical resonance in historical legal thought, such as Cicero’s Pro Roscio Amerino, in which he emphasized the unnatural and morally abhorrent nature of parricide to refute the plausibility of the accusation. The analysis herein suggests that aggravated punishment for parricide can be justified not merely by tradition or emotion but by a responsibility-centered rationale grounded in the core principles of modern criminal law.