형법상 위법성 개념의 의미 모순에 대한 고찰 - 정당화 사유로서의 기본권 보호의 실제에 대한 분석을 덧붙여 -

Fundamentally, the concept of unlawfulness goes beyond positive legal regulation and cannot be completely captured by completed conceptual forms. Surely, a judgment of criminal lawfulness needs a kind of formality but is necessarily related to a perspective of substance. The concept of unlawfulness is wide enough to contain antinomical contradiction. Substance of unlawfulness regarding obscurity and uncertainty is described to place a negative burden on principle of legality and rule of law. Moreover, the unformed concept of lawfulness is criticized to shatter and contaminate consistency and coherence of legal judgment. Nonetheless, it is inevitable and necessary that the concept of unlawfulness shows a non-finite form. The conception of unlawfulness in Korean criminal law should be found out in a different aspect than an common role that a conceptual standard plays based on sameness and different. That is, unlawfulness cannot be fully understood based on the dichotomy perspective of what exists or not but based on indeterminate aspect of relations between concepts and circumstances. In other words, the concept of unlawfulness functions as coordination of whole legal order. The view of supporting fundamental rights as justification reveals the contradiction and antinomy that the concept of unlawfulness has. In the stage of unlawfulness, a fundamental right appears as an objective formality or sometimes as non-finite substance. A fundamental right as justification is realized on the basis of conditions and circumstances. A fundamental right regarding criminal unlawfulness is not a single meaning but multiple forms. In addition, to protect a fundamental right, bipolarity and equilibrium are the real aspect of the concept of lawfulness.