原因において自由な行為に関する諸問題の検討 - 日本の議論を参考に -

Abstract

Responsibility　is must exist at the time of act. This is called 'principle of simultaneous existence of acts and responsibilities. Responsibility exists at the time of the act, it can be attributed to the actor about that act. In relation to such problem of responsibility ability the most problematic issue is the so-called Actio libera in causa problem. Actio libera in causa means to act as a responsible incompetence by acts such as drinking alcohol and drug use, and conduct criminal acts in that state. The Korean Penal Code stipulates the provisions of the statement on this in Article 10, paragraph 3, and despite the absence of so-called responsibility at the time of criminal activity, such act is subject to punishment and until recently 'the basis of penalty' It is a fact that there was a major discussion with reference to German discussion on the issue. However, Actio libera in causa is not only a debate about the grounds for penalties, but it is often a problem in virtually various parts. That is, there are plenty of room for discussion in many areas, such as (1) when the responsibility ability is reduced after the commencement of action, (2) when the criminal falls into a mistake, (3)　the time to criminal activities (4) When using diminished responsibility. Even though there are plenty of room for discussion in many parts, Korean Criminal Law has only made a major discussion on the basis of penalties Actio libera in causa can only be excluded from punishment if it follows the principle of responsibility principle which demands responsibility when criminal act. However, the purpose of punishing the Korean Penal Code, despite this, has been included, during which it is judged that there was much debate only on the basis of penalty. At the moment, Korea's law court and theory are no longer affirmative about original acts, and there is also a view that asserts that the provision of the Korean penal code itself is the basis for penalties. Therefore, the midpoint of the future discussion related to Actio libera in causa should go to solve the related problem. Among the problems associated with Actio libera in causa, Korean Criminal Law study is a matter of being debated only on the timing of the start of execution, and discussion on other issues is still to be done. Therefore, in this paper, I will examine the issues which are related to Actio libera in causa and discussed recently in Japan and examine how it can be used analyzed in Korean Criminal Law.