지식정보사회에서 형법의 역할변화에 대한 비판적 고찰

A Critical Study to the Role of Criminal Law in Information Society

Today our society has entered the era of information society. Therefore we have already met many harmful effects of information society, such as hacking, spreading of computer viruses, lewd and violent photos and motion pictures, and infringement of private information etc. What should do the criminal law to the harmful effects of information society? One solution is to hold to the traditional role of criminal law, and to deny to intervene in the new malfunction of the information society. The other solution is to give up the traditional role of criminal law (ultima ratio principle, supplementary character of criminal law in the settlement of social problem), and to take initiative in the settlement of malfunction of information society. We can not abandon the principle of the benefit and protection of law (Rechtgutprinzip) as the justification principle of modern criminal law, but can not neglect the new objects of criminal protection in the new era. The liberal and the law-ruled state viewpoint of criminal law has developed many normal principles to guarantee citizen's freedom from the state. But, this principle are now menaced by the malfunction of the information society. Information society has many common things with the risk society. Of course, in information society it is important to focus on the technical problems of the society to rationalize the economic structure and the social structure, but in risk society it is significant to provide new countermeasures for the fatal side effects of scientific and technical development of the society. Therefore, the former means the complement or reformative character to the established society, the latter means the basic renovation of the established society. But, the both debate on the information society and the risk society has the common problem which can not grope for the appropriate measures by the ground of old law principles and law concepts. In other worlds, If the concept of information implies new society which has new structure, the legal countermove should be prepared by the modification or supple mentation of the established legal concept. The following are the contents of this paper. Ⅰ. The Characteristics of the Risk in Information Society Ⅱ. The Change of the Concept of the Benefit and Protection of Law Ⅲ. The Limits of the Criminalisation in Information Society