형법의 사회적 기능변화에 따른 형사입법절차의 검토 : 실체법적 정당성의 확보를 위하여

The emergence of the “risk society” has transformed the social functions of criminal law into a mechanism for managing both structured and large-scale uncertain risks. In this context, criminal legislation has become the primary instrument and process for realizing the functions of what is often called “riskoriented criminal law.” It is therefore essential to examine how criminal legislation can retain substantive legitimacy without departing from the foundations of traditional criminal law theory, even amid these functional shifts. Such an inquiry requires careful analysis of the current developments and contexts of change, as well as reflection on what criminal law scholarship can—and must—contribute to the legislative process. Given the firmly established paradigm of risk society and risk-oriented criminal law, it seems nearly impossible to persuade contemporary legislators merely by reiterating traditional doctrines such as the principle of legality or subsidiarity (ultima ratio). However, to neglect this challenge would amount to a dereliction of duty on the part of criminal law scholars, particularly in light of the unique role of criminal law as a “weapon” of social control. Unlike other branches of law, criminal law demands strict systemic coherence and adherence to rigorous principles of legality and clarity, making expert evaluation indispensable in the legislative process. For such evaluation to have a meaningful impact in an era dominated by the paradigm of risk-oriented criminal law, there must be institutionalized forums for dialogue and deliberation among legislators, policymakers, and criminal law scholars. Even if such efforts cannot fully overturn the functionalization of criminal law, they can still reinforce its substantive legitimacy by ensuring that decisions on punishability emerge from genuine social consensus.