형법상 비범죄화의 체계론적 재구성 : 보호법익, 책임주의, 최후수단성원칙을 중심으로

Contemporary Korean criminal law faces severe over-criminalization. The scope of penal provisions has expanded indiscriminately, the number of special criminal laws has surged, while the criminal law's original function of protecting legal interests and the legitimacy of penal power have been severely weakened. The Constitutional Court's 2019 decision declaring the abortion offense unconstitutional highlighted the need for fundamental review of the Korean criminal law system. This paper approaches decriminalization not merely as the technical abolition of individual criminal provisions, but as a fundamental task of re-establishing criminal law's basic principles and reconstructing the entire criminal law system. The analytical framework of this thesis is structured around three fundamental principles of criminal law: the theory of protected legal interests (Schutzgut-Lehre), the principle of culpability, and the principle of ultima ratio. First, the theory of protected legal interests clarifies what values and interests criminal law must genuinely protect. Criminal provisions lacking clear protected legal interests or substantive legal interests, or those excessively prioritizing abstract societal and state interests over individual freedom, become targets for decriminalization. Second, the principle of culpability embodies the maxim "no punishment without guilt." Criminal provisions with unclear or absent culpability elements, or those prescribing severe punishment for minor culpability, require decriminalization consideration. Third, the principle of ultima ratio mandates using criminal law only as a last resort when alternative measures fail. Penal provisions in areas sufficiently regulated through civil law, administrative sanctions, or social control mechanisms become candidates for decriminalization. Specifically, this paper examines defamation through truthful statements, simple gambling offenses, and consensual sexual conduct between adults as targets for decriminalization. These offenses share characteristics of unclear protected legal interests, violations of fundamental human rights, and adequate regulation through alternative civil or administrative remedies. To realize decriminalization, this paper advocates systematization of clear standards and procedures. Legislators must comprehensively consider the protected legal interest criterion, culpability criterion, alternative means criterion, and penalty effectiveness criterion when determining decriminalization necessity. Additionally, a phased decriminalization strategy is presented: relaxed law enforcement and expanded depenalization (Phase 1) → partial decriminalization (Phase 2) → strengthened alternative regulatory systems (Phase 3) → complete decriminalization (Phase 4). From a comparative law perspective, Portugal's drug decriminalization, the Netherlands' judicial diversion system, Canada's decriminalization initiatives, and Germany's drug legislation reforms exemplify how the principle of ultima ratio can be concretely realized. These nations' experiences demonstrate that decriminalization can simultaneously achieve rule of law and human rights protection. The paper concludes as follows: Criminal law decriminalization, through systematic and principled approaches grounded in the theory of protected legal interests, the principle of culpability, and the principle of ultima ratio, can simultaneously achieve four objectives: recovering criminal law's legitimacy, protecting individual freedom and dignity, enhancing criminal justice system efficiency, and improving crime prevention's practical effectiveness. Decriminalization is a core strategy for criminal law reform, requiring sustained cooperation and effort from the legal academy, legislature, judiciary, administration, and civil society.