원인에 있어서 자유로운 행위와 형법 제10조 제3항 (A Study on actio libera in causa and the Article 10-3 on the Korean Penal Code)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 26권 / 4호 / 189 ~ 209페이지
· 저자명 : 김준혁

초록

The prevalent parties regard the article 10-3 on the Korean Penal Code as actio libera in causa. They introduce 'Tatbestand model' and 'exception mode' and protest the superiority of 'exception mode' to 'Tatbestand model'. And in terms of 'exception mode', they devide the act type of the article 10-3 on the Korean Penal Code to 4 type or 8 type and they admit the respective criminal responsibility of intentional crime or negligent crime by types.
But these analyses of the prevalent parties is worried because these can ignore the purpose of the article 10-3 on the Korean Penal Code. The prevalent parties use the discussion of German academic circle without criticism, not considering the birth reason of the theory, 'actio libera in causa'.
The article 10-3 is regulated in the chapter 'responsible ability' on the Korean Penal Code, so we must focus on responsible ability in interpreting the article 10-3. The article 10-3 must be made our legislators to solve the problem of responsible ability in case of a mental and physical disorder, not to imitate the German theory, 'actio libera in causa'. Although the problem of 'intention and negligence' is the part of 'illegality', the prevalent parties bring it into the interpret of the article 10-3, thereby make the mistake called the logic fallacy.
This fallacy is due to uncritical acception of the German theory, and the contradiction that 'the foreign theory' is prior to 'domestic positive law' is occurred.
Obviously, the article 10-3 on the Korean Penal Code is the regulation about responsibility part, not illegality.
Therefore, in the clause, "the person who had foreseen the occurrence of danger and caused a mental and physical disorder of his own free will", the words 'had foreseen the occurrence of danger' or 'of his own free will' must not be connected with 'intention and negligence' which are the factor of illegality.
We have to get back to the basics, literally interpretation broken out of the German theory is needed. We need the interpret manner of our own criminal law.
So 'had foreseen the occurrence of danger' must be interpreted as 'a performer's psychological state which had foreseen the danger to infringe the right' and 'of his own free will' must be interpreted as 'voluntarily'.

영어초록

The prevalent parties regard the article 10-3 on the Korean Penal Code as actio libera in causa. They introduce 'Tatbestand model' and 'exception mode' and protest the superiority of 'exception mode' to 'Tatbestand model'. And in terms of 'exception mode', they devide the act type of the article 10-3 on the Korean Penal Code to 4 type or 8 type and they admit the respective criminal responsibility of intentional crime or negligent crime by types.
But these analyses of the prevalent parties is worried because these can ignore the purpose of the article 10-3 on the Korean Penal Code. The prevalent parties use the discussion of German academic circle without criticism, not considering the birth reason of the theory, 'actio libera in causa'.
The article 10-3 is regulated in the chapter 'responsible ability' on the Korean Penal Code, so we must focus on responsible ability in interpreting the article 10-3. The article 10-3 must be made our legislators to solve the problem of responsible ability in case of a mental and physical disorder, not to imitate the German theory, 'actio libera in causa'. Although the problem of 'intention and negligence' is the part of 'illegality', the prevalent parties bring it into the interpret of the article 10-3, thereby make the mistake called the logic fallacy.
This fallacy is due to uncritical acception of the German theory, and the contradiction that 'the foreign theory' is prior to 'domestic positive law' is occurred.
Obviously, the article 10-3 on the Korean Penal Code is the regulation about responsibility part, not illegality.
Therefore, in the clause, "the person who had foreseen the occurrence of danger and caused a mental and physical disorder of his own free will", the words 'had foreseen the occurrence of danger' or 'of his own free will' must not be connected with 'intention and negligence' which are the factor of illegality.
We have to get back to the basics, literally interpretation broken out of the German theory is needed. We need the interpret manner of our own criminal law.
So 'had foreseen the occurrence of danger' must be interpreted as 'a performer's psychological state which had foreseen the danger to infringe the right' and 'of his own free will' must be interpreted as 'voluntarily'.

참고자료

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