객관적 귀속이론과 구성요건에 해당하는 ‘행위’의 실체요건

Abstract

Modern objective attribution theory formalizes ‘risk creation’ and ‘risk realization’ requirements as prerequisites for objective attribution. These two prerequisites are treated under a single conceptual topology of objective attribution, even in matters at different levels in light of historical understanding of the concept of attribution of classical attribution theory and the development of classical crime theory in the 19th century. For this reason, mainstream jurisprudence of korean criminal law has shown an absolute unbalanced attitude to risk realization requirements associated with causal or 'result' attribution problems in consuming objective attribution theory, and paid little attention to risk creation requirements associated with the interpretation and inclusion of constituent ‘action’. On the other hand, the Supreme Court of Korea has independently evaluated constituent act using similar methods of thinking and standards to examine risk creation requirements without being influenced by objective attribution theory in developing interpretation of constituent act. As a result of observing the target judgments from the perspective of objective attribution theory, it clearly shows the tendency of the Supreme Court to use legal interests as critreria in evaluating constituent act. Only these aspects can be analyzed that the Korean Supreme Court is actually approaching the risk creation requirements of objective attribution theory. However, in order to secure specific validity in interpreting individual constituent act, the Korean Supreme Court often summons various perspectives, standards, or considerations at his own discretion. However, in viewpoint of even securing specific validity should be made within the scope of maintaining legal stability as much as possible, it can be said that the Korean Supreme Court's rulings still do not reach a satisfactory level of formulation and systematization of substantive prerequisites common to each constituent act. In short, it can be said that the Korean Supreme Court shows a strong aspect in the interpretation of ‘detail’ of constituent act, but reveals vulnerability in the ‘general theory.’ If it cannot be denied that it is an academic demand to aim for a higher level of generalization in legal decisions, doctrine of Korean criminal law should provide the Korean Supreme Court with a ‘general theory’ that is lacking, that is, a substantive prerequisite for all criminal constituent act. The general theory that can provide substantial prerequisites for the concept of constituent act is the objective attribution theory, especially the risk creation requirement. In addition to the risk creation requirements proposed in th jurisprudence of German criminal law, this article introduced the possibility and necessity of establishing Korean risk creation requirements. Korean Supreme Court has already shown some of that possibility. This article emphasized the need to make 'K-doctrine' in order to set up the proportional relationship between the protection of legal interests and the guarantee of basic rights of freedom as a substantive prerequisite for the concept of act as a constituent requirement of actus reus.