S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 47, Number 1/4 (2006)
형법 제20조 사회상규 규정의 성립경위
Korean Criminal Act (Article 20) - Establishment of Normal Social Rules-
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.47 No.2, pp. 189-219
- 사회상규; 일본개정형법가안; 김병로; Normal Social Rules; Establishment of Korea Criminal Act; Byungro Kim; 형법제정; 정당행위
- One of the grounds that allows the exemption of criminal liability in the
Korean Criminal Act is the Article 20 (Justifiable Act). Article 20 specifically
states that 'an act which is conducted in accordance with Acts and subordinate
statues, or in pursuance of accepted business practices, or other action which
does not violate the social rules shall not be punishable'. Among the three
justifiable acts, the exemption based on the 'normal social rules' is considered
one of the most unique features of Korean Criminal Act. Unlike other laws, it
does not originate from the German Criminal Act or Japanese Criminal Act.
There has not been much research on how the 'Normal Social Rules' had been
established in the past. Since it was unclear where the 'Normal Social Rules'
originated benchmarked from, many issues have been raised regarding the
interpretation of the provisions. Recently, the author found important documents
which illustrate the legislative process of The 'Normal Social Rules'. Byungro
Kim played a significant role in writing the draft of general provisions of
Korean Criminal Law. In his article, "Discussion on Unlawfulness as a Requisite
for Criminal Liability", which was published in 1915, he used the concept of
'Normal Social Rules' based on the concept of material unlawfulness.
The author examined the establishment process of 'Normal Social Rules' in the
following chronological order: (1) Byungro Kim' idea in his 1915's article, (2)
Reform of Criminal Act in Japan in 1930s, (3) Draft of Korean Criminal Act in
1949, (4) National Assembly and Establishment of Korean Criminal Act in 1953,
(5) Korean Supreme Court decisions. The author's goal is to reconstruct the...