정범론에 나타난 형사실무의 주관주의적 경향－ 보라매병원 사건을 중심으로

Abstract

This study explores a critical perspective of a deviation between criminal law and the practice of criminal law when it considers criminal responsibility of a number of individuals who are involved in a criminal proceeding. Although it shows a tendency that the opposition between objectivism and subjectivism has been solved by the appearance of 'Tatherrschaft', a representative of the German theory of “hegemony and control over the act” of Claus Roxin in the Korean theory of criminal law, there is a number of decisions of the courts which resorts to subjectivism in accordance with the needs in the practice of criminal law. The case described in this study showed an example of how the decision was severely influenced by the subjective attitude of the court. In this study, the attitude of the Supreme Court was thoroughly and critically examined as well as the reasons why the decisions of courts were made were also analyzed. Through this analysis, I demonstrated that the various problems resulted from the expansion of the potential range of punishment according to the immediate needs although a request for 'konkrete Billigkeit' is more important than anything else when criminal responsibility is considered.