범죄 피해 개념의 규범적·법사회학적 재조명

The concept of criminal harm or victimization is not clearly defined in the Korean legal framework. However, because harm resulting from crime exists on various normative and factual levels, the definition and scope of the concept can significantly influence its impact on both individuals and society. While normative standards, such as legal interests, serve important functions in criminal law, they frequently fail to capture the full scope of harm experienced by victims, especially in cases involving indirect harm or crimes against the public interest. This discrepancy between legal abstractions and the reality of suffering marginalizes victims, rendering their experiences legally invisible. This article begins by exploring the sociological question of how adequately the normative criteria used to define criminal victimization and victims reflect victims’ realities. First, this paper broadly examines the various dimensions of criminal harm, including those within domestic and international normative frameworks and those that exist as social realities outside these frameworks. It then looks into the limitations of the conceptual framework of analysis traditionally used in criminal law and victimology to normatively encompass these harms, focusing on the theory of legal interests in substantive criminal law and critical victimology. This investigation reveals the need to move beyond these conventional approaches, which often prioritize legal form over human experience. Therefore, the present article proposes a more substantive understanding of criminal victimization and victims from a broader perspective. This is achieved through a dual-lens approach:normative and sociological. From a normative perspective, it seeks to expand the viewpoint through an affirmative interpretation based on international human rights norms. From a sociological perspective, it applies the theoretical orientation of humanistic sociology to develop a human-centered interpretation. Through this series of humanistic approaches, the article aims to overcome the alienation of human beings and the normative limitations surrounding the concept of criminal victimization. It seeks a comprehensive and authentic understanding of the victim’s reality from a phenomenological perspective together with the methodology of symbolic interactionism. Based on this analysis, this study reexamines the concept of criminal victimization, highlighting three key insights: First, rooted in human rights and dignity, the concept of criminal victimization should encompass all negative impacts on human life caused by crime, irrespective of the type of crime, the nature of the harm, or its level of directness. Second, it is crucial to acknowledge the existence of harm at various levels, including those to which domestic law, international law and human rights norms apply, as well as those that fall outside of normative frameworks. This requires adopting a tailored, individualized approach for each dimension of harm, thereby transcending the limitations of the conventional legal interest theory. Third, by distinguishing between the normative harm as defined by law and the harm experienced by the victim, this article advocates for the symbolic acknowledgment of the latter, even when normative criteria are not met. By embracing this humanistic approach, we can ensure victims’ human rights and make legal norms more responsive to the realities of criminal victimization.