신경과학의 발달과 형법 제10조 책임능력의 문제

Abstract

The development of neuroscience has become a starting point to question the existence of the freedom to decide human behavior itself, which has been taken for granted. If human beings do not have the freedom to decide their actions, it may be difficult to impose criminal liability on individual human beings based on the results of their actions. However, given the fact that human neural action is not the only cause of certain behavioral outcomes, that the current level of neuroscience development does not clearly explain this, and that even if neuroscience develops further in the future, natural scientific and normative research are distinct, it cannot be denied the freedom of the individual as a prerequisite for the imposition of responsibility. Even so, we cannot blindly ignore the neuroscientific achievements that have been revealed so far in the matter of attribution of criminal responsibility. When trying to solve the normative problem of attribution of criminal responsibility while considering neuroscientific achievements, the first thing to discuss is the regulation of mental disorders that regulates incompetence and limited liability. In this paper, it is considered that the current neuroscientific perception does not change the basic premise of judgment of responsibility. However, it is believed that the interpretation of individual exceptions, that is, the criterion and category of insanity, can be changed. In fact, our precedents sometimes apply the mental disorder provisions to crimes committed due to insanity caused by side effects of drug use. In this case, it is necessary to discuss in advance whether Article 10 Section 1 and 2 of the Criminal Act can be applied on a case-by-case basis considering the development of neuroscience and which criteria should be considered when applying. Current precedents in this regard are confined to the issue of drug use, but as technology develops, more complex and diverse issues will emerge. As neurotechnology directly and powerfully affects the human brain, this can lead to greater side effects. Furthermore, if one is aware of the side effects of neurotechnology, but uses it for the purpose of treatment and commits an actual crime due to the side effects, it can also be discussed whether Article 10 Section 3 of the Criminal Act can be applied as before. This paper introduces a new argument that Article 10 Section 3 of the Criminal Act can be applied based on the actor's omission to preventive measures. As such, the development of neuroscience is raising several issues related to responsibility that have not been considered important in legal practice.