‘범죄’가 무엇인지에 대하여 종래 견해의 대립이 있었으나 20 세기 초반 이후 범죄의 성립 여부는 구성요건해당성, 위법성, 책 임의 3단계를 거쳐 검토되어야 한다는 3단계 범죄론체계가 주류적인 견해로 받아들여지게 되었다. 구성요건(Tatbestand)이란 형벌의 근거가 되는 행위유형을 기술한 것을, 구성요건해당성은 구체적인 행위가 이러한 객관적인 법률상 요건과 일치하는 것을 말한다. 위법성(Rechtwidrigkeit)은 구성요건에 해당하는 행위가 법질서 전체의 관점에서 허용되지 않음을 의미하며, 책임 (Schuld)은 구성요건에 해당하는 위법한 행위에 대하여 행위자를 개인적으로 비난할 수 있느냐의 문제를 말한다. 3단계 범죄론체 계에서는 이 세 가지가 모두 구비되어야 비로소 범죄가 ‘성립’ 되었다고 한다. 3단계 범죄론체계 중 위법성과 책임의 단계는 구성요건에 해당하는 행위이지만 예외적으로 사회적 허용성이 인정되거나 개인적 비난가능성이 없는 경우를 걸러내는 형태, 즉 구성요건해당행위 에 내포된 위법성을 배제하여 위법한 행위를 정당화(justification) 하거나, 구성요건해당행위에 대해 가해지는 책임비난을 면제 (excuse)하는 형태로 구성되어 있다. 이처럼 범죄의 성립을 저지하는 사유를 강학상 ‘정당화사유 또는 위법성조각사유’ 및 ‘면책 사유 또는 책임조각·감경사유’라 한다. 이 논문에서는 주요 선진국의 정당화사유 및 면책사유에 관한 입법례를 살펴보고 이들을 통해 우리 입법의 타당성 및 우수성을 검토함으로써, 현행법의 합리적 개선방안을 모색해 보고자 한다.

The Criminal Act has regulations of criminal punishment against illegal use of authenticated document. The one who has made out document without authority and/or false document with authority shall be punished in the use of document. But, punishment against use of document truly made by authorized person is thought to be exceptional considering benefit of document crime of “public reliability on the document.” Then, what’s the meaning of“unlawful uttering” may be of problem. Supreme Court's judicial precedent has adopted not only authority of use of document but also original usage of document to judge illegal use and has made four cases to have different legal judgment. But this study adopted authority of use of document as an only standard for unlawful uttering considering differences depending upon rights in document crimes, and interpretation of various kinds of ‘illegal use’ from point of view of the Criminal Act and related special laws. Unlawful uttering has no reason to judge depending upon original usage of the document, and extends scope of punishment at punishment against unlawful uttering of document up to other purpose of use. The loss and damage at other purpose of use is out of scope of legal benefit of unlawful uttering is thought to be inappropriate. To admit of unlawful uttering from point of view of Supreme Court's judicial precedent, expansion of scope of original usage may expand scope of the punishment to violate principle of Nullum Crimen, Nulla Poena Sine Lege. In this case, Supreme Court's judgment that did not admit of unlawful uttering was thought to be appropriate, but Supreme Court's basic position that followed judgment standard of original usage than authority of the use should be reconsidered.

The punishment laws and regulations should be strictly interpreted and applied according to phrases based on ‘Nullum crimen sine lege’ principles, and they should not be interpreted excessively in disadvantage of the defendant nor be interpreted analogically, and requirements and/or conditions of attachment of electronic device should be also interpreted in same way. The prosecutors were permitted to ask the court order of attachment of electronic device in accordance with the Act on the Electronic Monitoring of Specific Criminal Offenders when a criminal was admitted to have habit by committing sex violence crime two times or more(including guilty judgment). Majority opinions accepted 'guilty judgment' only: When the court judged whether or not the one who was given request for oder to attachment of electronic device committed sex violence crime two times or more, it should not consider previous record of protective disposition in accordance with the Juvenile Act. On the other hand, minority opinions said that the regulation should be applied at guilty judgment only, so that previous record of protective disposition against sexual violence in accordance with the Juvenile Act should be applied to sex violence crime two times or more. Majority opinion followed not only the Juvenile Act but also protective disposition to be advantageous to the one who was given request for oder to attachment of electronic device: But, ‘committing crime’ was limited to ‘guilty judgment’ except for behavior of corresponding case not to be good from point of view of interpretation of the Criminal Act. Majority opinion said that the one who committed sex violence crime should be punished in accordance with the Act on the Electronic Monitoring of Specific Criminal Offenders depending upon two cases to be unfair, that is to say, guilty judgment in accordance with general criminal procedures and protective disposition in accordance with the Juvenile Act. Judicial precedents of lower court differed to require legislative supplementation.

A subject of demand on appropriateness in accordance with social rules is thought to be the most important at behaviors by the consent. In other words, estimate of the action by criminal law shall be discussed not by an actor's internal will but by infringement upon legal interest at outside world. Either purpose or motive of the one who has infringed upon legal interest with consent shall not be considered at the estimate of appropriateness of social rules. Therefore, the subject that shall limit consent by social rules shall be not motives and purposes of the consent but ‘an action that infringes upon legal interest’ in accordance with the consent. What type of infringement upon legal interest does limit justification? The problem is related to ‘scope’ of the demand on appropriateness of social rules. Unless special provisions which punish crimes such as murder and abortion regardless of consent, Article 24 of the Criminal Act shall be applied to the crimes of all of private legal interests considering legislation purpose and systematic position. Majority of the scholars think that infringement upon legal interest of other crime types than aforementioned crimes require appropriateness of social rules, and ‘bodily injury’ with consent can be of problem. Considering various kinds of spectrum of bodily injury, the discussion has reached ‘degree’ of demand on appropriateness of social rules, in other words, scope of the permit of bodily injury subject to the consent.The value and specialty of legal interest of bodily injury subject to the consent can be discussed: But, medical treatment for beauty care, minor bodily injury and others that have minor bodily injury with consent of entity of legal interest need not be protected by the Criminal Act. When bodily injury subject to the consent jeopardizes existence of legal entity to threaten life or equivalent and to be serious, punishment against the action is thought to be admitted despite consent. Article 258(Aggravated Bodily Injury) of the Criminal Act can be used for reference.