상당인과관계설의 상당성 판단기준을 위한 상당성의 구체화 작업 시도 - 피해자의 도피행위를 중심으로 -
Fright and Flight theory in Causation
0
조회
0
다운로드
2
인용
0
참고문헌
키워드
초록
Causation in the Criminal Law is very important as it is a part of an element of a crime, especially result crime. Where an accused is charged with a result crime, it is necessary for the prosecution to prove that her act or omission caused the prohibited consequence. Traditionally speaking, there has been several theories to solve the problem of causation. One is a 'sine qua non' or 'but for' theory, which must be established that the consequence would not have occurred when it did 'but for' the accused's conduct. But the sine qua non theory is said to be not sufficient for it's ambit is too wide to establish the causation. So comes an 'adequacy' theory, which means that when a prohibited consequence occurs whether the relation between the cause in question and the consequence is adequate or reasonable. For a long time the adequacy theory has been the majority in theory and cases in Korea. But nowadays a new theory has appeared before 25 years ago from the German Criminal Law, which is called 'objective attribution' theory. It is getting and getting common here. Objective attribution theory means that a prohibited consequence comes from the cause in question. However, even though objective theory is popular among the scholars, adequacy theory is the majority in the criminal cases because of the Japanese criminal law theory. But it has been attacked by some scholars because the meaning of adequacy is somehow abstract or obscure. To overcome the problems of the adequacy theory, it must settle a new way of reasoning. As a one reasoning, there comes so-called 'Fright and Flight' theory in Anglo-American Criminal Law. It seems to solve the problems of adequacy theory.
Abstract
Causation in the Criminal Law is very important as it is a part of an element of a crime, especially result crime. Where an accused is charged with a result crime, it is necessary for the prosecution to prove that her act or omission caused the prohibited consequence. Traditionally speaking, there has been several theories to solve the problem of causation. One is a 'sine qua non' or 'but for' theory, which must be established that the consequence would not have occurred when it did 'but for' the accused's conduct. But the sine qua non theory is said to be not sufficient for it's ambit is too wide to establish the causation. So comes an 'adequacy' theory, which means that when a prohibited consequence occurs whether the relation between the cause in question and the consequence is adequate or reasonable. For a long time the adequacy theory has been the majority in theory and cases in Korea. But nowadays a new theory has appeared before 25 years ago from the German Criminal Law, which is called 'objective attribution' theory. It is getting and getting common here. Objective attribution theory means that a prohibited consequence comes from the cause in question. However, even though objective theory is popular among the scholars, adequacy theory is the majority in the criminal cases because of the Japanese criminal law theory. But it has been attacked by some scholars because the meaning of adequacy is somehow abstract or obscure. To overcome the problems of the adequacy theory, it must settle a new way of reasoning. As a one reasoning, there comes so-called 'Fright and Flight' theory in Anglo-American Criminal Law. It seems to solve the problems of adequacy theory.
참고문헌 (45)
- 김성돈, "형법총론" (2009), SKKP
- 김성돈, "범죄유형별 인과관계판단과 직접성", 형사판례연구, 13, pp.53~75 (2005)
- 김성천, "독일의 객관적 귀속이론과 우리의 판례", 2005년도 한국비교형사법학회 춘계학술논문발표회 회의자료 (2005)
- 서보학, "형법총론" (2006), 박영사
- 도중진, "형법에 있어서 상당인과관계와 객관적 귀속", 비교형사법연구, 2(2) (2000)
- 법무부, "형법개정법률안 제안이유서", ~ (1992)
- 배종대, "형법총론" (2005), 홍문사
- 박상기, "형법총론(제7판)" (2007), 박영사
- 성낙현, "형법총론" (2010), 동방문화사
- 申洋均, "刑法上 因果關係와 客觀的 歸屬에 대한 硏究", 박사, 법학, pp.1989
- 안동준, "형법총론" (1998), 학현사
- 오영근, "형법총론" (2012), 박영사
- 윤용규, "인과관계의 이해와 판단척도, In 형사법의 주요이론" (2007)
- 이건호, "형법 제17조의 위험발생의 의미와 상당인과관계설", 형사법연구, (17), pp.19~42 (2002), 한국형사법학회
- 이경재, "일본형법상 인과관계론", 충북대학교법학연구소, 16(1), pp.1~14 (2005)
- 이경재, "영국형법상 인과관계에 관한 학설과 판례 검토", 비교형사법연구, 7(2(2)), pp.227~246 (2005), 한국비교형사법학회
- 이상돈, "형법강의" (2010), 법문사
- 이영란, "형법학" (2008), 형설출판사
- 이용식, "객관적 귀속이론의 규범론적 의미와 구체적 내용, In 현대형법이론 I" (2008)
- 이재상, "형법총론" (2011), 박영사
- 이형국, "형법총론" (2007), 법문사
- 임웅, "형법총론" (2002), 법문사
- 장영민, "인과관계의 확정과 합법칙적 조건설", 형사판례연구, 3 (1995)
- 정성근, "형법총론" (2001), 삼지원
- 정영일, "개정판 형법총론" (2007), 박영사
- 진계호, "형법총론" (2000), 대왕사
- 한국형사정책연구원, "형법제정자료집" (1990)
- 허일태, "엄상섭 선생의 형법사상과 형법이론, In 효당 엄상섭 형법논집" (2006), 서울대학교출판부
- 都重珍, "刑法における相當因果關係と客觀的歸屬", 박사, pp.2000
- 山口厚, "刑法總論" (2007), 有斐閣
- 伊藤眞, "刑法總論" (2007), 弘文堂
- 林陽一, "刑法における因果關係理論" (2000), 成文堂
- 前田雅英, "刑法總論講義" (2001), 東京大學出版會
- 辰井聰子, "因果關係論" (2006), 有斐閣
- W セミナ, "COMPACT DEVICE 刑法I(總論)" (2008), 早稻田經營出版
- Michael J. Allen, "Textbook on Criminal Law" (2000), Blackstone Press Limited
- Andrew Ashworth, "Criminal Law" (2003), Oxford University Press
- C. M. V. Clarkson, "Criminal Law: Text and Materials" (1998), Sweet & Maxwell
- Marise Cremona, "Criminal Law" (1989), MacMillan
- H.L.A. Hart, "Causation in the Law" (2002), Oxford University Press
- Nicola Padfield, "Criminal Law" (2006), Oxford University Press
- Alan Reed, "Criminal Law" (2002), Sweet & Maxwell
- A P. Simester, "Criminal Law: Theory and Doctrine" (2003), Hart Publishing
- Tony Storey, "Criminal Law" (2004), Willan Publishing
- Glanville Williams, "Textbook of Criminal Law" (1983), Stevens