도덕의 법적 강제에 대한 논쟁과 헌법재판소의 결정

The English Debates on the Legal Enforcement of Morality and the Decisions of the Korean Constitutional Court

&nbsp;&nbsp;This paper consists of two parts. One is to analyze the debates on the legal enforcement of morality which have done in England. This part includes the theories and arguments of J. S. Mill and J. F. Stephen in the 19th century and those of the Wolfenden Report, P. Devlin and H. L. A. Hart in the 20th century. The other is to review the decisions of the Korean Constitutional Court relevant to the theme of the legal enforcement of morality, and to criticize the decision of the constitutional court which hold the criminal law provision punishing adultery to be constitutional.<BR>&nbsp;&nbsp;In the former part, I maintained that the debates can be divided into two groups. One includes Mill, the Wolfenden Report and Hart, and the other Stephen and Devlin. Among them, Mill’s position is the most controversial, but as Hart interpreted him, he did not oppose paternalism very much.<BR>&nbsp;&nbsp;In the latter part, I focused my analysis on the reasoning in the adultery case. The Court declares that the government may punish only such an act that infringes right of others. It should not punish such an act that merely violates sexual morality. In addition, the Court upholds that if the state punish such an act, the punishment should be supported by legal consciousness. It concluded that adultery was an act that infringed rights of others and whose punishment was supported by the legal consciousness.<BR>&nbsp;&nbsp;It is dubious whether adultery infringes the rights of others. I think that some members of our society feel it does while not a few members feel on the contrary. In addition, insofar as the Court induces the support of legal consciousness as the practical criteria of punishment, it should be used as a criteria restricting the exercise of the government power. Is it justifiable for the government to punish adultery in case that the 60% of legal consciousness judges that it infringes rights of others? The criteria should be interpreted to demand an overwhelmingly high degree consensus for punishment.