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긴급피난의 상당성에 관한 연구 : Die Angemessenheit des Notstands im kStGB
| DC Field | Value | Language |
|---|---|---|
| dc.contributor.advisor | 신동운 | - |
| dc.contributor.author | 김영중 | - |
| dc.date.accessioned | 2017-07-13T17:26:58Z | - |
| dc.date.available | 2017-07-13T17:26:58Z | - |
| dc.date.issued | 2013-02 | - |
| dc.identifier.other | 000000009971 | - |
| dc.identifier.uri | https://hdl.handle.net/10371/120855 | - |
| dc.description | 학위논문 (박사)-- 서울대학교 대학원 : 법학과, 2013. 2. 신동운. | - |
| dc.description.abstract | 형법은 제22조에서 위난상황에서 일정한 경우에 처벌되지 않는 규정을 두고 있으며 이를 긴급피난이라 한다. 1953년에 형법이 제정된 이후 대법원에서 긴급피난으로 무죄를 선고받은 사안은 거의 없다. 하지만 긴급피난은 긴급한 상황에서 범죄로 나아간 자에게 입법자가 부여한 권리이다. 따라서 법원은 긴급피난을 적극적으로 검토해야 할 필요가 있다.
긴급피난에 대한 기존의 연구는 형법 제22조의 성질에 관한 것이 주류를 이루었으며, 상당한 이유에 대한 논의는 상대적으로 적었다. 긴급피난의 다른 표지들과는 달리 상당한 이유는 어떠한 행위가 긴급피난에 해당하는지를 판단하는 중요한 기준이 된다. 제2장에서는 입법사적 고찰을 통하여 독일과 일본을 거쳐 우리 형법에 긴급피난 규정이 도입되게 된 경위에 대해 알아보고자 하였다. 우선 독일의 1871년 형법 제54조, 1909년 초안 제67조, 1911년 대안 제26조, 1919년 초안 제22조, 1925년 초안 제25조, 1927년 초안 제25조, 1930년 초안 제25조를 차례대로 살펴보았다. 다음으로 일본의 1907년 형법부터 1927년 형법개정예비초안 제19조, 1931년 개정형법가안 제19조에 나타난 긴급피난 규정의 의미를 고찰하였다. 1931년 일본개정형법가안에서 상당성의 표지는 당시 스위스 형법초안의 정당방위의 상당성에서 비롯된 것으로 보인다. 이 규정을 계수한 우리 입법자는 상당한 이유라는 표지를 두어 그 적용에 있어서 유연함을 두고자 하였다. 제3장에서는 긴급피난의 본질과 상당한 이유의 의미에 대해서 살펴보고자 하였다. 긴급상황 하에서 피난행위자에 의하여 보호되는 이익이 침해되는 타인의 이익보다 우월한 경우에 한하여 긴급피난은 허용된다. 긴급피난의 정당성 근거로는 공동체의 연대라는 관점과 국가적 가치 재분배의 기능을 달성한다고 보는 연대성의 원칙이 타당하다고 본다. 형법 제22조 제1항의 해석에 있어서 그 요건으로 상당한 이유를 규정하고 있고, 동조 제2항에서 위난에 책임없는 자에 대해서는 제1항의 적용을 배제하고 있다. 따라서 형법 제22조 제1항은 위법성 조각사유 뿐만 아니라 책임조각사유로서의 긴급피난도 규정하고있다고 해석된다. 제4장은 상당한 이유의 요건에 대한 내용을 담았다. 부정한 침해에 대한 방위행위로서 자기수호를 목적으로 인정되는 정당방위에 있어서의 상당한 이유와는 달리 긴급피난의 경우에는 보충성과 보호이익의 우월성이 구비되어야 한다. 넓은 의미에서 이익균형의 원칙에 따르면 수단의 적합성은 이익균형을 판단하는 기준 속에 포함시킬 수 있다. 위난을 초래한 자에 대한 긴급피난인 방어적 긴급피난의 경우에는 상당한 이유 요건 중 이익균형 원칙을 완화하여 해석하여야 한다. 제5장에서는 위의 논의를 바탕으로 긴급피난의 상당한 이유와 관련하여 특별히 문제되는 자초위난과 과잉긴급피난에 대해서 고찰하였다. 우리 형법은 독일형법과 달리 자초위난을 직접 규정하고 있지는 않다. 위난에 책임있는 사유가 있기 때문에 자초위난자는 일정한 의무를 진다. 따라서 이를 고려하여 긴급피난의 성립을 제한하여야 한다. 이와 관련하여 상당한 이유는 긴급피난의 적용을 제한하는 작용을 한다. 특히 이러한 작용은 이익형량에서 구체적으로 나타나게 된다. 한편 형법 제22조 제2항은 위난을 피하지 못할 책임있는 자에 대하여는 긴급피난의 규정을 적용하지 아니한다고 규정한다. 이러한 자들 속에는 그 직무를 수행함에 있어서 당연히 일반인보다 높은 위난감수의무가 있는 자들뿐만 아니라 위난을 자초한 자도 포함될 수 있다. 자신의 책임있는 사유로 위난을 자초한 자는 자신이 그 위험을 인수한다고 볼 수 있다. 제6장에서는 민법상의 긴급피난 규정의 해석과 관련한 문제를 논의하고자 하였다. 민법은 긴급피난 규정에 있어서 형법의 상당한 이유와는 달리 부득이라는 요건을 두고 있다. 형법과 민법에서 긴급피난은 서로 다른 해석론이 전개되고 있다. 따라서 민법상 긴급피난의 도입경위 및 이에 대한 해석론을 독일과 일본을 중심으로 알아보았다. 위법성조각사유는 전체 법질서의 견지에서 인정되는 것이므로 그것이 어느 개별법에 규정되어 있든지 간에 모든 법영역에 통일적으로 적용되어야 한다. 그러므로 형법과 민법의 긴급피난의 해석에 있어서도 일관성이 필요하다고 생각한다. | - |
| dc.description.tableofcontents | 제1장 들어가며 ················································································1
제1절 연구의 목적··········································································· 1 제2절 연구의 방법 및 용어의 정의 ············································· 3 1. 연구의 방법 ················································································ 3 2. 용어의 정의 ················································································ 6 가. 보충성의 원칙 ·········································································· 6 나. 사회적 상당성과 상당한 이유 ··············································· 8 제2장 긴급피난 규정에 대한 입법사적 고찰 ·························10 제1절 서론 ····························································································· 10 제2절 독일 형법상 긴급피난 규정의 입법연혁 ····························· 13 1. 독일 (구)형법의 개정연혁 ··································································· 13 2. 1871년 독일제국형법 제54조 ······························································ 15 3. 1909년 예비초안 제67조 및 1911년 대안 제26조 ·························· 16 4. 1919년 독일형법초안 제22조 ······························································ 18 5. 1925년 독일형법초안 제22조 ······························································ 21 가. 1925년 독일형법초안 제22조의 형벌배제사유로서의 의미 ················ 21 나. 1922년 오스트리아 형법 대안 제17조, 제23조 ····································· 22 다. 1925년 독일형법초안과 기대가능성 ························································ 25 6. 1927년 낙태죄 판결 및 1927년 초안 제25조, 1930년 초안 제25조 · 27 가. 1927년 낙태죄 판결과 초법규적 위법성조각사유의 등장 ·················· 27 나. 1927년 초안 제25조 및 1930년 초안 제25조 ········································ 34 7. 소결 ·········································································································· 38 제3절 일본 형법상 긴급피난 규정의 입법연혁 ····························· 39 1. 일본형법의 개정연혁 ············································································ 40 - 2 - 2. 1907년 일본 형법 제37조 ···································································· 41 3. 1927년 형법개정예비초안 제19조 및 1931년 개정형법가안 제19조 ···· 43 가. 형법 개정강령 23항 및 예비초안 제19조 ·············································· 43 나. 1931년 개정형법가안 제19조 ···································································· 45 4. 1918년 스위스 형법초안에서 긴급피난 규정의 성립경위 ············ 48 제4절 우리나라 형법상 긴급피난규정의 성립경위 ······················· 52 1. 서설 ·········································································································· 52 2. 개화기 이전 긴급피난 사례 ································································ 53 3. 개화기의 긴급피난 규정 ······································································ 55 4. 형법 제정 당시 입법과정 및 논의 ···················································· 64 가. 법전편찬위원회 초안 제22조 ···································································· 64 나. 법제사법위원회 수정안 제22조 ································································ 65 다. 입법자의 의도를 확인할 수 있는 자료 - 엄상섭의 긴급행위에 대한 시론 ··· 67 라. 형법제정 당시의 학설 ················································································ 71 마. 소결 ················································································································ 72 5. 형법개정과정에서의 긴급피난 규정에 대한 논의 ·························· 73 가. 1992년 형법 일부개정법률안 ···································································· 73 나. 2011년 형법 일부개정법률안 ···································································· 80 제5절 소결 ····························································································· 86 제3장 긴급피난의 불처벌 근거와 그 성질 ·····························90 제1절 서론 ····························································································· 90 제2절 긴급피난의 불처벌 근거 ························································· 91 1. 자기보호의 원칙과 공리주의, 연대의무 ··········································· 91 2. 위법성조각인가 책임조각인가 ···························································· 95 3. 면책적 긴급피난 규정의 입법논의 ···················································· 99 4. 면책적 긴급피난의 인정가능성과 한계 ·········································· 101 - 3 - 가. 면책적 긴급피난 관련 영미법상의 사례 ·············································· 102 나. 생명과 생명이 충돌하는 경우 이익형량 ·············································· 105 제3절 우리 형법상 긴급피난 규정의 성질 및 기대가능성 ······· 107 1. 우리 형법상 긴급피난 규정의 성질 ················································ 107 가. 책임조각설 ·································································································· 107 나. 위법성조각설 ···························································································· 108 다. 위법성조각 및 책임조각설(이분설) ······················································· 110 2. 초법규적 기대가능성 인정여부 ························································ 113 가. 문제의 제기 ································································································ 113 나. 형법 제22조 제1항과 형법 제12조의 관계 ·········································· 116 다. 면책적 긴급피난 인정여부에 대한 법원의 태도 ································ 118 제4절 소결 ··························································································· 122 제4장 우리 형법의 긴급피난 규정에서 상당한 이유의 의미 ··124 제1절 서론 ··························································································· 124 제2절 형법상 긴급피난에 있어서 상당한 이유의 의미 ············· 125 1. 정당방위에 있어서 상당한 이유와의 차이 ···································· 125 2. 사회상규와 긴급피난에 있어서 상당한 이유의 의미 ·················· 126 제3절 긴급피난에 있어서 상당한 이유의 세분화 ······················· 136 1. 서론 ········································································································ 136 2. 보충성의 원칙 ······················································································ 138 3. 이익균형의 원칙 ·················································································· 143 가. 이익균형의 원칙에서 이익의 의미 ························································ 144 나. 이익비교 기준 ···························································································· 145 4. 적합성의 원칙 ······················································································ 163 5. 방어적 긴급피난에서의 상당한 이유 ·············································· 165 가. 문제의 제기 ································································································ 165 - 4 - 나. 방어적 긴급피난의 상당한 이유 ···························································· 167 다. 예방적 긴급피난의 상당한 이유 ···························································· 169 제4절 소결 ··························································································· 171 제5장 형법상 긴급피난에 있어서 상당한 이유의 해석 관련 문제···173 제1절 서론 ··························································································· 173 제2절 자초위난과 상당한 이유 ······················································· 173 1. 자초위난의 의의 ·················································································· 173 2. 자초위난 사례 ······················································································ 175 3. 자초위난의 긴급피난 해당여부 ························································ 178 가. 문제의 소재 ································································································ 178 나. 고의ㆍ과실 불문 전면부정설 ·································································· 178 다. 고의ㆍ과실 불문 전면긍정설 ·································································· 179 라. 과실로 인한 자초위난에 한해서만 긴급피난을 긍정하는 학설 ······ 179 마. 구체적ㆍ개별적 긴급피난의 성립 인정설 ············································ 180 바. 각 학설에 대한 비판 및 소결 ································································ 181 4. 자초위난과 형법 제22조 제2항의 해석 ·········································· 183 가. 위난을 피하지 못할 책임있는 자 ·························································· 183 나. 전항의 규정을 적용하지 않는다의 의미 ··········································· 185 5. 소결 ········································································································ 188 제3절 과잉긴급피난과 상당한 이유 ··············································· 191 1. 과잉긴급피난의 개념 및 유형 ·························································· 191 2. 과잉긴급피난의 형의 감면 또는 불가벌 근거 ······························ 196 3. 과잉긴급피난의 요건 ·········································································· 197 가. 현재의 위난 ································································································ 197 나. 피난의사의 존재 ························································································ 197 다. 상당성 정도 초과 ······················································································ 198 - 5 - 4. 과잉긴급피난의 효과 ·········································································· 204 가. 형벌감면적 과잉긴급피난 ········································································ 204 나. 불가벌적 과잉긴급피난 ············································································ 204 제4절 소결 ··························································································· 206 제6장 형법상 긴급피난의 상당한 이유와 민법의 부득이 요건·······208 제1절 서론 ··························································································· 208 제2절 우리 민법상 긴급피난 규정의 해석 ··································· 211 1. 현행 민법과 구민법(의용민법)의 차이 ··········································· 211 2. 현행 민법상 긴급피난의 요건과 형법상 긴급피난의 요건 비교 212 3. 방어적 긴급피난과 민법 제761조 제1항 단서 ······························ 214 4. 민법상 긴급피난 규정의 해석에 대한 법원의 태도 ···················· 216 5. 소결 ········································································································ 220 제3절 민법상 긴급피난 규정의 입법례 ········································· 222 1. 독일민법상 긴급피난의 해석 ···························································· 222 가. 방어적 긴급피난 규정으로서 독일민법 제228조 ································ 223 나. 공격적 긴급피난 규정으로서 독일민법 제904조의 요건 ·················· 227 다. 소결 ·············································································································· 230 2. 일본민법상 긴급피난 ·········································································· 231 가. 일본민법 제정당시 긴급피난 규정관련 논의 ······································ 231 나. 일본민법 제720조 제2항의 해석 ···························································· 234 다. 소결 ·············································································································· 239 제4절 소결 ··························································································· 240 제7장 나가며 ···············································································245 | - |
| dc.format | application/pdf | - |
| dc.format.extent | 2377144 bytes | - |
| dc.format.medium | application/pdf | - |
| dc.language.iso | ko | - |
| dc.publisher | 서울대학교 대학원 | - |
| dc.subject | 긴급피난 | - |
| dc.subject | 위법성조각사유 | - |
| dc.subject | 책임조각사유 | - |
| dc.subject | 자초위난 | - |
| dc.subject | 과잉긴급피난 | - |
| dc.subject.ddc | 340 | - |
| dc.title | 긴급피난의 상당성에 관한 연구 | - |
| dc.title.alternative | Die Angemessenheit des Notstands im kStGB | - |
| dc.type | Thesis | - |
| dc.contributor.AlternativeAuthor | Kim, Yeong Jung | - |
| dc.description.degree | Doctor | - |
| dc.citation.pages | 249 | - |
| dc.contributor.affiliation | 법과대학 법학과 | - |
| dc.date.awarded | 2013-02 | - |
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