문서 개념에 대한 법이론적 분석 - 형법의 문서 개념을 중심으로 하여 -

This article examines the concept of document, particularly the problematic concept of document in criminal law. For a specific deviant related to a document to be considered as a crime, it must first be understood what a document is in criminal law. Consequently, various discussions about the definition of a document have taken place in criminal law and judicial cases. Interestingly, Korean judicial cases and prevailing academic doctrine still base their understanding of the concept of document on a ‘material-centered’ perspective. ‘Electronic documents,’ already actively used as a media of communication in society, are not yet encompassed by the concept of ‘document’ in criminal law. This article examines, particularly from a legal theory perspective, the underlying thinking behind the document concept in our criminal law and whether it can still be maintained. In today's digital and AI-driven society, excluding electronic documents from the document concept may be an unrealistic legal response. However, interpreting legal concepts is a normative task that must also consider normativity of legal systems. Above all, as the request to prohibit analogy suggests, strict normative constraints must be placed on the interpretation of criminal law. In this regard, while sympathizing with the argument for engraving electronic documents as one of documents in criminal law, this article ultimately reaches a conclusion that rejects it. It argues that this issue is best addressed through legislation, not interpretation.