긴급구조상황에서 고문의 허용 여부 - 고문행위의 형사법적 정당화와 면책 가능성을 중심으로-

Abstract

The Sept. 11 terrorist attacks awakened people to the dangers of terrorism, and many countries take strong measures against terrorism. In this context, it is being actively discussed, whether torture against suspected terroists or hostage takers is criminally justified or excused. Traditionally, torture is absolutely forbidden and has been considered taboo. However, it is argued in some papers that torture should be allowed and justified as a preventive action for saving life in the life threatening emergency situation, especially, ticking time bomb scenario. According to them, prohibition against torture is not any more absolute principle, it can get relative meaning in exceptional conditions. They say, human dignity or autonomy can be one of the elements under balancing test. According to them, torture for saving life should be justified, because life of the innocent people has higher value than dignity of the terrorists or hostage takers. In this paper, it is examined, whether the supporting argument for torture is proper or reasonable, and torture for saving life in emergency situation satisfy the requirements of self defense, justified necessity, conflict of duties, justifiable act. In my opinion, torture can not be justified under any justification catalogues. We can not set the reasonable limits of torture, and the officers can misuse or abuse their legal authorities to torture. Once the door is open to torture, it can be slippery slope. This is the main reason of negative attitude towards torture. But a denial of justification does not mean the punishment of torturer. There is still room for excuse under strict requirements. If it is impossible to expect not to use torture in the extreme situation, we can treat the conscientious decision as an excuse.