대마 비범죄화(decriminalization)의 국제적 동향과 시사점- 하트-데블린 논쟁과 관련하여-

This article re-examines the legitimacy of criminal regulation of cannabis use within the theoretical framework of the Hart-Devlin debate, with a view to clarifying the limits of criminal law intervention in cases of so-called “harmless immorality.” To this end, it first compares and analyzes Hart’s liberal theory of criminalization, which inherits John Stuart Mill’s harm principle, with Devlin’s legal moralism, which justifies the exercise of the penal power on the basis of majority morality and social cohesion. On that basis, it offers a theoretical account of how the competing values of individual self-determination, public health, and the protection of minors are structured in contemporary debates over cannabis regulation. The article then examines the processes of decriminalization and legalization of cannabis, as well as the associated constitutional debates, in jurisdictions such as the United States, Canada, and Germany, and explores their tensions with the international drug control regime established under United Nations conventions. It further surveys empirical research on the extent to which criminal law-centered drug policies have in fact contributed to reducing drug use, lowering crime rates, and improving public health outcomes. blanket criminalization of cannabis use and possession under the Korean Narcotics Control Act, together with the reasoning of the Constitutional Court and the Supreme Court, and identifies the points at which the current legislative scheme either conflicts with, or operates in a manner that undermines, core modern principles of criminal law such as ultima ratio, the prohibition of excessive punishment, and the protection of adult individuals’ freedom in self-regarding conduct. Building on this analysis, it proposes a phased decriminalization strategy that clearly distinguishes between mere use/possession and profit-motivated distribution/ trafficking, and that shifts the regulatory model for the former toward an administrative, treatment- and education-oriented public health approach. Overall, by taking the debate over cannabis regulation as a focal case, the article reconstructs the classical confrontation between liberalism and legal moralism regarding the justification and limits of criminalization, and, through the integration of comparative and empirical analysis, argues for a fundamental reconsideration of Korean criminal law at both the legislative and interpretive levels.