형별법규의 구성문제 = A Critical Study for Formation of Penal Code

다국어 초록 (Multilingual Abstract)

This paper analyzes how modern industrial society expands the extent and range of criminal law through a variety of legislative techniques. Modern risk society has a structure which evokes the constant risk. Criminal lawmakers firstly mobilize criminal law that should be activated as ultima ratio, and raise the level of penal sanction to turn risk society into safe society. Previously penal code was made up of the verletzungsdelikts, but nowadays recently tends to perform the protective function by consisting of the gefahrdungdelikts to intensify the protection of criminal law in modern risk society. This tendency is derived from the functionalization and non-formularization of crimal law. This is why criminal lawmakers criminalize the behavior that can be the source of a common risk in order to prevent real danger more effectively. As part of these efforts, they approve the universal legal interests, and introduce the abstract gefahrdungdelikt widely. As well as these, criminal law is going to expand its field through a variety of legislative techniques. The expansion trend of criminal law threatens the principles of rule of law including nulla poena sine lege, and leads to a crisis in criminal law. On the basis of this critical mind, this paper analyzes legislative techniques such as systemicity, regelbeispiel, abstract gefahrdungdelikt, clarity of legal description, limit of delegated legislation etc. that should be considered when criminal lawmakers enact or amend penal code.