형법상 낙태피해자로서 태아의 보호와 그 한계

Limitation of Abortion Victim Protection in the Criminal Law and Methods of Protecting it

As a human, who will be born in the future, an fetus is the objects with human rights to live to be protected by the Article 10 in the constitution. Human rights are the absolute values, thus must be protected peremptorily. While the criminal law provides for a series of crimes such as murder, injury and accidental homicide regarding human being to protect life and the body, it only provides for illegal abortion regarding fetus. It also underestimates life, which is the absolute value, because it is only limited to deliberate offense to be disciplined and there are no related rules to punish negligence. This study aims to examine the recent judicial cases to know how the criminal hold fetus' life in no account after reviewing legal positions of fetus under the present law. As a result, I have reached the conclusion that at criminal law, as it stands, cannot carry out its rights enough to protect fetus' life. Therefore, a different provision for fetus needs to be legislated. By setting an offense against negligent abortion newly, fetus' life must be protected and there is a need for applying punishment rules to negligence only on principle of subsidiarity under the criminal law.