법률의 착오에 관한 영미판례의 동향 (Cases about Ignorance or Mistake of Law in English Criminal Law)

서지정보

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· 저자명 : 박강우

초록

The Korean Criminal Law has recognized a Mistake of Law as exculpatory when it is admitted that the dependant has a just cause to think his or her act is not illegal. So traditionally the Korean Supreme Court has ruled that this clause is applicable to only mistake of law not to ignorance of law.
This article aims to review the english criminal cases and theories about mistake of law and to suggest reformative scheme in korean law about mistake of law. To this end I start the distinction between ignorance of law and mistake of law. The traditional mistake of doctrine is summed up in the slogan “ignorance of the law is no excuse”. This general refusal to consider mistake of law as a defense is a highly objectionable to many scholars of criminal law. Many have argued that this basic mistake of law doctrine ought to be abolished or modified as inconsistent with the fundamental criminal law principle of blameworthiness.
And this article raises a question about the dominant opinion in scholars which interpret the just cause as the inevitability according to German Criminal Law. There could be many other causes for the defendant to think his or her act is not illegal. For example, if the defendant thinks his act would be illegal, but his comrades in the same occupation think in the same way, the defendant is likely to think that his act would be permissible in the situation. But the above dominant opinion closes the possibility of defense for the defendant who did not have any fault or error.
In the end, I suggest that korean criminal clause about mistake of law should be modified or revised to give more possibility of defense for defendant who did not neglect his duty to inquire legal status and opinion over his living space.

영어초록

The Korean Criminal Law has recognized a Mistake of Law as exculpatory when it is admitted that the dependant has a just cause to think his or her act is not illegal. So traditionally the Korean Supreme Court has ruled that this clause is applicable to only mistake of law not to ignorance of law.
This article aims to review the english criminal cases and theories about mistake of law and to suggest reformative scheme in korean law about mistake of law. To this end I start the distinction between ignorance of law and mistake of law. The traditional mistake of doctrine is summed up in the slogan “ignorance of the law is no excuse”. This general refusal to consider mistake of law as a defense is a highly objectionable to many scholars of criminal law. Many have argued that this basic mistake of law doctrine ought to be abolished or modified as inconsistent with the fundamental criminal law principle of blameworthiness.
And this article raises a question about the dominant opinion in scholars which interpret the just cause as the inevitability according to German Criminal Law. There could be many other causes for the defendant to think his or her act is not illegal. For example, if the defendant thinks his act would be illegal, but his comrades in the same occupation think in the same way, the defendant is likely to think that his act would be permissible in the situation. But the above dominant opinion closes the possibility of defense for the defendant who did not have any fault or error.
In the end, I suggest that korean criminal clause about mistake of law should be modified or revised to give more possibility of defense for defendant who did not neglect his duty to inquire legal status and opinion over his living space.

참고자료

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