객관적 귀속론과 영미법상 법적 인과관계

Abstract

Some crimes require the prosecution to prove that the defendant caused a particular result. Under Anglo-American law, the necessary causation is of two types: 'factual causation' and 'legal causation'. The dominant test for cause-in-fact is the sine qua non, or but-for test. If the harm would not have occurred unless the defendant had engaged in the conduct, there is cause in fact. However, there is no equivalent dominant test of legal cause. Legal causation is a flexible analysis involving a variety of policy considerations and which ultimately asks whether as a matter of policy the defendant should be held responsible for a particular result. The structure of the theory of causation in Korean and German law is almost the same as in Anglo-American law. Under Korean and German law, the causation has two aspects: 'natural causation', and 'objective imputation'. The natural causation is a matter of fact and determined by the sine qua non test like in Anglo-American law. Objective imputation questions cannot be answered solely by physical sciences. Thus, they are not facts that can be uncovered by scientifically examining cause and effect in the real world. The existence of factual causation will not alone support a finding of criminal liability. In addition, there must be proof of legal causation or possibility of objective imputation. The test for legal causation and objective imputation is not a matter of fact but a matter of law that is to be determined after evaluating various policy considerations. The tests for legal causation or objective imputation varies according to the point of view. Thus, it is important to develop certain tests for legal causation or objective imputation that can be approved of generally. For that purpose, it is necessary for Korean scholars to employ scholarly results from both German law and Anglo- American law.