정당행위에 대한 대법원 판단기준과 법이론적 분석

The Supreme Court's Judgment Criteria for Just Acts and Legal Theoretical Analysis

This thesis analyzes the concept of social norms in Korean criminal law and the legal characteristics from the point of view of the criminal system theory in a legal theory. It is a work to materialize the independent meaning and type of social norms. Since the concept of social norms has the nature of a general clause that requires value charging, it can be a dangerous concept with the possibility of arbitrary judgment, so it is necessary to materialize the meaning of the concept. The Supreme Court stated that ① the motive or purpose of the act was justified, ② the appropriateness of the means or method of the act, ③ the balance between the interests of protection and the infringement, ④ urgency, and ⑤ the subsidiarity requirements as criteria for judging a just act. there is. This thesis analyzed the legal theory of each judgment standard suggested by the Supreme Court in the partisan act. The frequent use of an indeterminate concept or a value-filled concept in criminal law is embarrassing not only to researchers but also to defendants in criminal courts. This is because it is difficult to predict specific judgment results. It is undesirable to develop into a judicial law by neglecting the fluidity and apathy of the concept of social norms used in the process of judging legality and illegality. Even if the concept of social norms, which has a general clause character, inevitably requires a judge's supplementary value judgment, the rationale for the theory of law must be thoroughly demonstrated.