형사법상 존속과 비속의 차별적 취급에 관한 연구

초록

What is morality? It might be imperative that morality ought to be protected by the law, however, the content of morality protected by the law should be the minimum although there should be controversy in what contents needs to be considered minimum. Otherwise we are making a big mistake of equating law with morality. Specially, when it comes to criminal law and criminal procedure where the main purpose of those laws are protecting the victims, it might not be easy to decide who is the group of people in need of being protected. What is certain is regardless what status a person hold, anyone harmed by others deserves to get the shield laws provide. The Article 224 of Korean Criminal Procedure provides that "A Complaint shall not be lodged against a lineal ascendant of the principal himself or of his spouse."The Article means that children even if they are victims of criminal wrong-doings of their parents, they cannot brought suit against them. The Article directly comes from an arcane principle in which children cannot bring any criminal action against their parents because they are someone that children should give a proper respect no matter who they are. Is such Article fair and balanced? Is this only an attempt to codify what ethics should be? Regrettably, recently the Constitutional Court of Korea ruled in favor of the constitutionality of Article, saying that the respect that children need to give to their parents are universal, therefore the Article is constitutional. Such ruling might be about what oriental morality tells people to do, however it cannot be a contemporary order that modern country needs to observe. Japan, although it followed the French law by adopting such the rule of not letting children sue their parents in 1922, it abolished such article in 1948. As Patrick Devlin said, “the function of law is not to intervene in the private lives of citizens.” Rather the law should protect the weak no matter what status the society gives to a specific group of people. If the allows such discrimination, it flatly ignores the need of victims to be protected. Above, no one can be above others and the letters of law need to support that.

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