범죄와 도덕적 가치

허경미

저

(주)박영사

출판

51.31

ISBN 9791130387178 (95350)
출간일 2024-10-31
346

소장	20,700스콘 10

소장	20,700스콘 10

작품 소개

초판발행 2024.07.30

머리말

범죄와 도덕적 가치(Crime and Moral Values)는 도덕과 범죄 사이의 복잡한 관계를 탐구하고, 시대에 따라 도덕적 가치, 원칙, 윤리적 틀이 어떻게 범죄행위와 형사사법체계에 반영되고 형성되는지를 탐색하는 데 초점을 둔 책이다. 좀 더 구체적으로는 이 책은 함무라비법전에서부터 미국의 수정헌법, 대한민국의 헌법에 이르기까지 도덕적 가치가 어떻게 생성되고, 그것이 법규범에 어떻게 반영되는지 그리고 사회적 보편성과 합치 또는 충돌의 과정을 거치며, 새로운 도덕법칙을 만들고 사회구성원의 윤리적 틀을 견고히 하는지 그 일련의 과정을 들여다보고자 하였다.

한편으로는 범죄가 도덕적 가치에 미치는 영향과 그 순환성에 대해서도 살펴보았다. 특정 범죄가 사회의 도덕적 가치관을 어떻게 변화시키는지, 그리고 이러한 가치관의 변화가 다시 관련 범죄에 어떤 영향을 미치는지에 대해서 고민하였다.

이 책, 범죄와 도덕적 가치는 크게 다섯 파트로 분류할 수 있다. 첫 번째 파트는 개념적 영역으로 도덕과 범죄의 정의와 고대문명 사회의 도덕과 윤리성 및 범죄개념 등의 태동 등을 설명하는 도입 부분이다. 함무라비법전, 마아트(ma’at), 히브리성경, 고대인도문명 등에서 발견되는 보편적 도덕성과 범죄 그리고 형벌체계가 오늘날 어떤 양상으로 구현되고 있는지 살펴 보았다. 두 번째 파트는 도덕성과 윤리학, 그리고 범죄학적 관점에서의 범죄와 처벌의 상호작용을 설명하는 영역으로 벤담과 밀의 공리주의, 칸트의 정언명령 관점의 도덕과 범죄 그리고 형벌 특히 사형제와 구금형에 대한 인식의 차이를 탐색하였다.

세 번째 파트는 도덕성과 범죄성이 유전적인 것인지, 발달하는 것인지, 학습에 의해 그 수준이 달라지는 것인지에 대해 행동신경과학, 롬브로소의 격세유전설, 콜버그와 반두라의 인지이론 등을 통하여 규명해 보았다. 같은 맥락에서 우리 사회에서 사이코패스범을 치료할 것인지 아니면 형벌의 대상으로 삼을 것인지에 대한 진지한 논의가 필요하다는 것을 확인하였다.

네 번째 파트에서는 시민인권적 차원에서의 도덕과 범죄의 경계선상에 있거나 이중적 지위에 있는 사회적 이슈, 즉 시민불복종(civil disobeidence), 마약, 안락사, 낙태, 표현의 자유 등에 대하여 그 논쟁점 들을 살펴보았다. 여기서는 특히 영국과 미국의 노예폐지운동, 홍콩의 노란우산운동, 캐나다 브리티시 컬럼비아주의 전면적인 마약 합법화, 네덜란드의 안락사와 의사조력자살, 낙태자율권에 대한 미국 연방대법원의 범죄화로의 전환, 영화배우 고 이선균 사건에서 드러난 언론의 왜곡된 표현의 자유 등을 통해 도덕성과 범죄성의 경계가 무엇인가에 대해 집중적으로 분석하였다.

다섯 번째 파트에서는 무관용주의(zero tolerance) 형사정책, 화학적 거세, 알고리즘 경찰권 행사 등의 주제를 통해 국가 혹은 공권력 차원에서 이루어질 수 있는 도덕과 범죄성 관련 충돌과 갈등적 요소들이 무엇인지, 그것들이 사회구성원의 삶의 질과 존엄성에 미치는 영향을 알아보았다. 특히 무관용주의를 최초로 도입한 미국의 이 형사정책이 특정 피부색을 가진 비행청소년들을 교정시설로 보내는 파이프라인 역할을 한다는 비난에 직면한 사실, 특정인을 잠재적 위험인물로 표적(target)하고 경찰권을 행사하는 이른바 알고리즘 경찰권행사의 불공정성 혹은 몰인간화(dehumanization) 등의 쟁점을 짚어보았다.

부디 이 책, 범죄와 도덕적 가치가 첨예하게 입장이 갈리는 위와 같은 이슈들에 대해 건강한 합의를 도출해나가는 길의 한 이정표가 되길 바란다. 특히 범죄화와 비범죄화(discriminalization), 도덕과 부도덕의 경계가 무너지고, 새로운 경계가 만들어지는 약물사용, 낙태, 성범죄자 화학적 거세, 알고리즘 경찰권, 표현의 자유, 안락사나 조력자살 등에 있어 우리 사회는 좀 더 치열한 담론이 필요하다.

이 책을 출판하기까지 세심한 배려를 해주신 박영사의 편집진, 관심과 지지를 보내주시는 독자여러분과 가족에게 감사의 마음을 담아 보라색 수국 한바구니를 선사한다.

2024년 7월에

계명대학교 쉐턱관에서 저자 허경미

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CHAPTER 01
도덕과 범죄
Ⅰ. 도덕, 도덕성이란 ··············································································· 5
Ⅱ. 도덕적 입장과 도덕적 이유 ······························································ 7
Ⅲ. 범죄란 무엇인가 ················································································ 8
Ⅳ. 도덕적 관점에서의 범죄 ··································································· 9
Ⅴ. 도덕성, 범죄, 처벌의 모호성과 딜레마 ··········································· 11

CHAPTER 02
고대문명 사회의 도덕과 범죄
Ⅰ. 문명의 발달과 도덕성, 그리고 범죄 ··············································· 17
Ⅱ. 함무라비 법전의 도덕과 범죄 ························································· 17
Ⅲ. 마아트의 도덕과 범죄 ······································································ 20
Ⅳ. 히브리성경 십계명의 도덕과 범죄 ·················································· 24
Ⅴ. 고대 인도문명의 도덕과 범죄 ························································· 28

PART 02
도덕적 선택 및 의무, 범죄와 형벌

CHAPTER 03
공리주의, 도덕적 선택과 범죄
Ⅰ. 공리주의와 도덕 ·············································································· 37
Ⅱ. 공리주의와 트롤리 딜레마 ······························································· 38
Ⅲ. 벤담의 공리주의, 도덕성과 범죄 ····················································· 41
Ⅳ. 밀의 공리주의, 도덕성과 범죄 ························································ 43
Ⅴ. 한국의 사형제도와 공리주의 ··························································· 45
1. 범죄에 대한 응보와 사회방어 ·························································· 47
2. 범죄억제력과 국민의 법적 정서 ······················································ 47
3. 법익의 균형성 ·················································································· 48
4. 극악한 범죄에 상응한 형벌 ····························································· 48
5. 사형집행관 등에 대한 인권침해와 무관 ·········································· 48
6. 사형제의 대안으로서 절대적 종신형은 또 다른 인권침해 우려 ···· 49

CHAPTER 04
도덕적 의무론과 응보주의 형벌
Ⅰ. 계몽주의와 합리주의 ······································································· 55
Ⅱ. 칸트의 도덕적 의무론 ······································································ 55
1. 칸트의 정언명령 ··············································································· 57
2. 칸트의 선의 ····················································································· 59
Ⅲ. 칸트의 도덕, 범죄 그리고 형벌 ······················································ 60
Ⅳ. 칸트 관점의 구금형과 사회내처우의 차별성 ·································· 63
1. 칸트 관점의 구금형 ·········································································· 63
2. 칸트 관점의 사회내처우 ·································································· 65

PART 03
도덕성과 범죄성의 유전과 발달, 그리고 사회화

CHAPTER 05
행동신경과학: 도덕성과 범죄성의 DNA를 말하다
Ⅰ. 행동신경과학: 도덕성 그리고 범죄 ················································· 75
Ⅱ. 유전과 뇌 ························································································· 77
Ⅲ. 뇌와 신경계의 기능 ········································································· 79
1. 대뇌, 뇌간, 소뇌 ··············································································· 79
2. 신경계 ······························································································ 81
Ⅳ. 생래적 범죄인설 ·············································································· 86
1. 관상학, 골상학 및 진화론 ································································ 86
2. 롬브로소의 격세유전설과 형벌 ························································ 90
Ⅴ. 생래성과 형벌의 딜레마 ·································································· 93

CHAPTER 06
도덕성과 범죄성의 발달과 학습
Ⅰ. 심리학적 관점의 도덕성의 발달 ······················································ 99
Ⅱ. 콜버그의 발달이론적 관점의 도덕성 ··············································· 99
Ⅲ. 반두라의 사회학습이론 관점의 도덕성 ·········································· 103
Ⅳ. 사회학적 관점의 도덕성 ································································ 107

CHAPTER 07
사이코패스: 질병과 형벌의 성긴 울타리
Ⅰ. 사이코패스: 장벽 너머 그들 ·························································· 115
Ⅱ. 정신장애로서의 사이코패스 ··························································· 115
Ⅲ. 사이코패스의 원인과 진단 ····························································· 119
1. 사이코패스의 원인 ·········································································· 119
2. 진단 ································································································ 122
Ⅳ. 사이코패스 범죄자 형벌과 도덕적 딜레마 ···································· 123

PART 04
도덕성과 범죄성의 경계와 해체, 새로운 정의의 출현

CHAPTER 08
시민불복종운동, 정의와 범죄 그 사이
Ⅰ. 시민불복종운동이란 ········································································ 135
Ⅱ. 시민불복종운동의 특징 ·································································· 137
Ⅲ. 시민불복종운동의 사례 ·································································· 138
1. 영국의 노예폐지운동 ······································································ 138
2. 미국의 노예폐지운동 ······································································ 140
3. 홍콩의 민주화운동: 노란우산운동 ·················································· 146
Ⅳ. 경찰권 거부운동 ············································································· 148
1. 흑인의 생명도 중요하다 ································································· 148
2. 경찰무용론: 인천 층간소음 흉기난동 사건 ··································· 151

CHAPTER 09
마약: 쾌락과 질병 그리고 범죄론의 변주
Ⅰ. 마약위원회: 처벌에서 치료로 ························································ 159
Ⅱ. 마약류: 기분전환용과 메디컬의 경계 ············································ 161
Ⅲ. 마약류 합법화로의 여정: 캐나다 ··················································· 165
1. 대마초 사용 실태 ············································································ 165
2. 개인의 건강권과 안전권 vs 대마초 금지 ······································ 166
3. 의료용 및 기호용 대마초의 전면적 합법화 ·································· 169
4. 캐나다 BC주 희망을 향한 길(A Pathway to Hope):
규제 약물의 비범죄화 ···································································· 170
5. 정책적 배경 ···················································································· 172
6. 치료와 모니터링, 회복 ··································································· 173
Ⅳ. 마약류 남용: 범죄자인가? 뇌기능 장애자인가? 부도덕자인가? ··· 173
1. 범죄자인가? ···················································································· 173
2. 뇌기능 장애자인가? ······································································· 176
3. 부도덕자인가? ················································································ 177

CHAPTER 10
안락사, 죽음으로 가는 미끄러운 경사로인가?
Ⅰ. 안락사란 ························································································· 183
Ⅱ. 안락사의 유형 ················································································ 184
Ⅲ. 네덜란드의 안락사 ········································································· 186
1. 제정배경 ·························································································· 186
2. 요청에 따른 생명 종료 및 조력 자살(절차 검토)법 ····················· 188
3. 네덜란드의 안락사 및 의사조력자살 현황 ···································· 191
Ⅳ. 한국의 연명의료결정제도 ······························································· 193
1. 관련법의 제정 ················································································· 193
2. 연명의료대상 ·················································································· 195
3. 연명의료 중단 결정 ······································································· 196
4. 연명의료 중단의 이행 ···································································· 197
Ⅴ. 안락사를 둘러싼 도덕적 논쟁 ························································ 197

CHAPTER 11
낙태: 자기결정권과 생명권의 어느 지점
Ⅰ. 낙태: 이정표 없는 논쟁 ································································· 205
Ⅱ. 세계보건기구의 낙태에 대한 관점 ················································· 206
Ⅲ. 미국의 낙태 논쟁: 롤러코스터를 타다 ·········································· 208
1. Roe v. Wade 판결 ········································································ 208
2. Dobbs v. Jackson Women’s Health Organization 판결 ········· 209
3. 영향 ································································································ 211
Ⅳ. 캐나다와 뉴질랜드의 낙태법 ························································· 212
Ⅴ. 한국의 낙태, 헌법과 현실 ······························································ 213

CHAPTER 12
영화배우 고 이선균, 표현의 자유를 묻다.
Ⅰ. 표현의 자유와 도덕성 ···································································· 223
Ⅱ. 기본권으로서의 표현의 자유 ························································· 224
1. 표현의 자유권 ················································································· 224
2. 언론 ‧ 출판의 자유와 제한 ······························································ 224
Ⅲ. 영화배우 고 이선균 사건 ······························································· 226
1. 일의 전말 ························································································ 226
2. 문화예술인 연대회의의 진상 규명 요구 ········································ 227
3. 경찰의 수사정보 유출 ···································································· 229
Ⅳ. 표현의 자유와 범죄성 ···································································· 230
1. 민사적 책임 ···················································································· 230
2. 출판물에 의한 명예훼손죄의 성립 여부 ········································ 231
3. 피의사실공표죄와의 접점 ······························································· 234
Ⅴ. 도덕성과 인터넷 명예훼손죄와의 충돌 ·········································· 236
Ⅵ. 고 이선균 배우, 표현의 자유를 묻다. ··········································· 237

PART 05
국가 공권력, 형사사법권의 딜레마, 불균형성

CHAPTER 13
무관용주의 형사정책: 덫, 숨겨진 권력
Ⅰ. 깨진 창문이론과 무관용주의 ························································· 245
Ⅱ. 무관용주의적 범죄 대응전략 ························································· 246
1. 마약사범과 무관용주의 ··································································· 246
2. 폭력범에 대한 무관용주의 ····························································· 247
3. 뉴욕 경찰청(NYPD)의 무관용주의 ················································ 248
Ⅲ. 비행청소년에 대한 무관용주의 ······················································ 249
1. 비행청소년과 무관용주의 ······························································· 249
2. 정치적 이념에 따른 소년범 처벌의 편향성 ·································· 251
3. 소년범 개인별 발달적 특징과 환경의 비고려 ······························· 255
4. 형사사법 절차상 차별과 불공정한 처우 관행 ······························· 257
5. 소년범의 성인 교정시설에의 수용 문제 ········································ 258
Ⅳ. 무관용주의 형사정책의 딜레마 ······················································ 259
1. 과도한 무관용주의: 과밀수용을 낳다. ············································ 259
2. 도덕적 딜레마 ················································································ 261

CHAPTER 14
화학적 거세: 신체적 제재와 윤리 그 너머
Ⅰ. 이른바 거세의 역사 ······································································· 269
Ⅱ. 화학적 거세 ···················································································· 270
1. 도입국가 ·························································································· 270
2. 시행 방식 ······················································································· 273
3. 효과와 부작용 ················································································ 274
Ⅲ. 한국의 성범죄와 화학적 거세 ························································ 275
1. 대상자와 절차 ················································································· 275
2. 현황 ································································································ 277
3. 효과 ································································································ 278
4. 위헌성 여부에 대한 헌법재판소의 입장 ········································ 280
Ⅳ. 화학적 거세: 형벌과 치료의 윤리적 충돌 ····································· 281
1. 섹슈얼리티에 대한 몰이해 ······························································ 281
2. 화학적 거세 효과와 자발성의 문제 ··············································· 282
3. 형벌인가? 우생학적 제재인가의 논쟁 ··········································· 283
4. 국제인권규범과의 상충 ·································································· 285
5. 화학적 거세 약물의 부작용과 가역성의 모호성 ··························· 286
6. 표준적인 화학적 거세 매뉴얼 부재와 의료윤리 ··························· 287

CHAPTER 15
알고리즘 경찰권 행사: #해시태그 우범자,
#해시태그 범죄 피해자
Ⅰ. 알고리즘에 대한 이해 ···································································· 295
1. 알고리즘이란 ··················································································· 295
2. 알고리즘 유형 ················································································ 295
Ⅱ. 알고리즘의 활용 영역 ···································································· 297
Ⅲ. 알고리즘 경찰권 행사의 발전 ························································ 298
1. 컴스탯의 등장 ················································································· 298
2. 알고리즘 범죄예측 시스템의 개발과 특징 ···································· 299
Ⅳ. 알고리즘 경찰권 행사의 윤리성 쟁점 ··········································· 301
1. NYPD의 편향성 및 사생활 침해 논란 ··········································· 301
2. 과도한 성과주의와 데이터의 왜곡 ················································· 304
3. 편향적 범죄예측 ············································································· 307
4. 몰인간화 ························································································· 308
5. 표적 감시와 낙인찍기 ···································································· 308
6. 데이터의 불투명성과 위험예측 결과의 오류 ································· 309
Ⅴ. 한국의 프리카스는 전지적인가? ···················································· 311