긴급구조상황에서 사인(私人)에 의한 고문의 허용 여부

초록

Traditionally, torture is absolutely forbidden and has been considered taboo. After we have experienced terribles incidents as September 11 attacks in New York, Daschner Case in Germany, our perception of torture has been changed. It is being actively discussed, whether torture against suspected terrorists or hostage takers is criminally justified or excused. Some papers argue that torture should be allowed or 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. Therefore, torture for saving life should be justified, because life of the innocent people has higher value than dignity of the terrorists or hostage takers. Any torture for saving life is mainly used by public agency such as police officer, but a private person can put to torture in emergency situation. In this paper, it is dealt whether torture by private person can be justified or excused. At first, it can be examined, private torture for saving life in emergency situation satisfy the requirements of self defense, justified necessity, conflict of duties, justifiable act. However, torture can not be allowed under any justification catalogues, because it violates human decency, human autonomy that are human intrinsic and inviolable values. But a denial of justification does not always lead to the punishment of persons who put to torture. It is still reviewed, they can be excused under strict requirements. If it is impossible to expect not to use torture in the extreme situation, we should treat the conscientious decision as an excuse.

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