자의에 의한 심신장애자의 책임능력 재검토

Abstract

The subject traditionally addressed in the heading of ‘actio libera in causa’, that is, the acts of a person who voluntarily incurred mental disorder is one of the most challenging tasks in criminal law. In relation to this, the prevailing theory of Korean criminal law academic community emphasizes the literally interpretation of the provision of Article 10, Paragraph 3 of the Penal Code, maintaining that the provision is the exception to ‘the doctrine of responsibility’. This paper departs from consciousness on problems which the prevailing theory has. Basing on Tony Honoré’s semantic analysis of ‘can’ and ‘can’t’, I tries to explain what the principle of coexistence of action and capability-responsibility, and further responsibility itself means. The following are the key points about the doctrine of responsibility that comes from the implications of T. Honoré. In the principle of coexistence of action and capability-responsibility, the time is not an actual time but a virtual time in a hypothetical situation. It is connected with the position that punishment should be understood as a communicative act between the criminal and the legal community, and that capability- responsibility can be explained by the moral communication capacity of the criminal. Such an understanding of responsibility provides a satisfactory solution in relation to the acts done in voluntarily incurred mental disorder.