대마사용의 가벌성에 관한 비판적 검토 -독일사례를 중심으로-

A Critical Review on Punishability of Cannabis Use in Germany

Recently, cannabis use has been increasingly legalized and decriminalized. In light of this change, this study reviewed the legitimacy of punishability of cannabis use. Specifically, this study critically analyzed the needs and the legal basis of punishability of cannabis use that are not assuming infringement of others’ legal interests, and acquisition and possession of cannabis for individual use in Germany. National health is recognized as a legal interest of the current drug law of Germany(BtMG). In the legal interest of the national health, the criminal protection has been changed to the abstract and universal protection of legal interests that is directed to protection of functions and values of the nation and communities. This resulted in eliminating the restriction function of punishability in the criminal law and the legislators. And the paternalistic character of national health implies, and individual and social harmfulness of cannabis use that is assumed infringement of legal interest on others were criticized. Therefore, it hardly asserts that the legal interest of national health was established the legal interest of the criminal law that meets a minimum requirement for decriminalization in a punishability perspective. Also, in order to demonstrate whether criminal punishment on cannabis use is valid for protection of legal interests, this study reviewed the cases of decriminalization on cannabis acquisition and possession. The current legally regulated cannabis markets in the Netherlands, the Colorado State and the Washington State in the United States can be adequate models to replace criminal punishment with. Hence, Germany needs to legalize and decriminalize cannabis use. Specifically, this relates to expurgate cannabis from the Schedule 1 of the current drug law of Germany(BtMG) or abolish the regulations of the punishment on acquisition and possession of a small dose of cannabis for individual use. This indicates proactiveness for individual cannabis use is not penalized according to the criminal law. Also, the regulated delivery system for cannabis to supply legally a small dose of cannabis for individual use is needed. The results of this study suggest that there is a need to initiate social discussion on legitimacy and adequacy of legal punishment on individual cannabis use in Korea. Further, it is crucial to examine a paradigm shift of the cannabis policy toward decriminalization of individual cannabis use.