오늘날 자기결정권의 사상은 형사입법단계에서는 입법의 한계선으로서 기능하며, 형법 규정이 존속하는 동안에는 구성요건의 해석 기준으로서 기능하며, 자기결정권을 부당하게 제한하는 규정들을 비범죄화하는 근거로서 기능하는 등, 형법의 입법단계에서부터 그 폐지단계까지 전 과정에서 핵심적인 기능을 담당하고 있음을 확인하였다. 그러나 자기결정권에 관한 이론적 토대는 충분하지 않은 것으로 보인다. 이에 자기결정권의 법리를 체계화하기 위해서는 형법학자들의 노력이 요구된다. 형법은 국가가 개인의 자유를 가장 철저하게 보호할 수 있는 수단임과 동시에 개인의 자유를 직접적으로 제한하는 수단이 되므로, 형법학은 자기결정권 보장의 근거를 제공해줌과 동시에 자기결정권 제한의 근거를 제공해주기 때문이다. 이에 형법이 자기결정권을 보호법익으로 삼고 있는 경우, 형법이 사회적 법익을 보호하기 위하여 개인의 자기결정권을 제한하는 경우, 형법이 행위의 위법성 판단에 있어 피해자의 자기결정권을 반영하는 경우로 구분하여 형법학의 과제를 도출하였다. 자기결정권을 존중하기 위해서는 법익보호 임무, 비범죄화, 사회상규 및 후견주의와 자기결정권의 관계, 피해자의 승낙 등 형법의 주요 이론들에 대한 재검토가 필요함을 피력하였다. 이러한 재검토를 통하여 형법 제규정에 대한 정당성을 확보함과 동시에 자기결정권 사상이 목적하는 개인의 자유와 권리 보장 요청에 부합할 수 있을 것으로 기대된다. 또한 이는 자기결정권 법리의 체계화에 기여하게 될 것이다.

The Criminal Law is the strictest means used by the state to protect the freedom of its citizens, while at the same time, it is a means to directly restrict individual freedom. Due to this nature of the Criminal Law, the Study of Criminal Law can provide the basis for the guarantee of individual Self-determination as well as its restriction, but the fact of the matter is that this discipline has mostly focused on its restrictive role to date. However, with the idea of Self-determination propagating and the legal principles of Self-determination becoming more systematic, it is becoming increasingly more important for the study of criminal law to fulfill its role of protecting individual freedom and rights. In other words, it is necessary for the study of criminal law to progress into a direction in which the individual Self-determination is respected further. In order to respect the individual Self-determination as much as possible, the following must be fulfilled. First, for criminal laws which protect the legal interests of the individual Self-determination such as the one on rape and individual Sexual Self-determination, for instance, there must be efforts to seek measures to reinforce these laws. For example, the factors of sexual assault crimes should be specific and subcategorized according to the method and degree of infringing upon this right, based on which reasonable statutory punishment should be imposed. Second, for Criminal Laws that restrict the individual Self-determination such as the laws regarding Abortion, Adultery and Prostitution, the legitimacy of the provisions in question should be reviewed and if it is determined that they are not justifiable, bold actions must be taken to abolish such provisions. For instance, in case protection of the legal interests of ‘Sexual morality’ with respect to ‘Adultery’ is not deemed to satisfy the concept of legal interests in terms of Criminal Law or it is deemed that the protection of individual Sexual Self-determination take precedence over the protection of Sexual morality, then it is desirable to decriminalize adultery. These efforts in the Study of criminal law will contribute to the systematization of the legal principles of the Self-determination, through which the ultimate goal of the idea of Self-determination, which is the guarantee of individual freedom and rights, can be reached.

The Criminal Law is the strictest means used by the state to protect the freedom of its citizens, while at the same time, it is a means to directly restrict individual freedom. Due to this nature of the Criminal Law, the Study of Criminal Law can provide the basis for the guarantee of individual Self-determination as well as its restriction, but the fact of the matter is that this discipline has mostly focused on its restrictive role to date. However, with the idea of Self-determination propagating and the legal principles of Self-determination becoming more systematic, it is becoming increasingly more important for the study of criminal law to fulfill its role of protecting individual freedom and rights. In other words, it is necessary for the study of criminal law to progress into a direction in which the individual Self-determination is respected further. In order to respect the individual Self-determination as much as possible, the following must be fulfilled. First, for criminal laws which protect the legal interests of the individual Self-determination such as the one on rape and individual Sexual Self-determination, for instance, there must be efforts to seek measures to reinforce these laws. For example, the factors of sexual assault crimes should be specific and subcategorized according to the method and degree of infringing upon this right, based on which reasonable statutory punishment should be imposed. Second, for Criminal Laws that restrict the individual Self-determination such as the laws regarding Abortion, Adultery and Prostitution, the legitimacy of the provisions in question should be reviewed and if it is determined that they are not justifiable, bold actions must be taken to abolish such provisions. For instance, in case protection of the legal interests of ‘Sexual morality’ with respect to ‘Adultery’ is not deemed to satisfy the concept of legal interests in terms of Criminal Law or it is deemed that the protection of individual Sexual Self-determination take precedence over the protection of Sexual morality, then it is desirable to decriminalize adultery. These efforts in the Study of criminal law will contribute to the systematization of the legal principles of the Self-determination, through which the ultimate goal of the idea of Self-determination, which is the guarantee of individual freedom and rights, can be reached.

Self-determination, Legal interest, Decriminalization, Paternalism, Consent of Victim, Normal social rules clause