위법성조각사유의 객관적 성립요건에 관한 착오
Mistake in Objective Conditions of Justification
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In case an act constitutes nominal violation of the criminal law but it is done by way of self-defense or act out of necessity, the act will be justified. Therefore the actor remains unpunishable. To admit such justification, there must be objective circumstances of self-defense or act out of necessity and the actor must have had subjectively knowledge of the circumstances of self-defense or act out of necessity. But there are case where the actor is subjectively mistaken in the existence of the objective circumstances of self-defense or act out of necessity, although such circumstances didn’t exist in fact. The problem in such cases is whether the actor is punishable or not. These are the cases of so-called ‘mistake in objective conditions of justification.’ Korean Criminal Code contains provisions about mistake of fact(error facti) and mistake of law(error iuris), but no provision about this type of mistake. The Supreme Court decided in its judgement that the actors who had such mistakes are not punishable because they are exempted from the responsibility for their acts. Unlike the judicial precedents, there are various theories about this theme. The punishability of an actor who had this type of mistake was studied in this thesis, with its focus on the theories. As a conclusion, it was argued that an actor who was in such mistakes should not be punishable as he or she is not reprehensible.
Abstract
In case an act constitutes nominal violation of the criminal law but it is done by way of self-defense or act out of necessity, the act will be justified. Therefore the actor remains unpunishable. To admit such justification, there must be objective circumstances of self-defense or act out of necessity and the actor must have had subjectively knowledge of the circumstances of self-defense or act out of necessity. But there are case where the actor is subjectively mistaken in the existence of the objective circumstances of self-defense or act out of necessity, although such circumstances didn’t exist in fact. The problem in such cases is whether the actor is punishable or not. These are the cases of so-called ‘mistake in objective conditions of justification.’ Korean Criminal Code contains provisions about mistake of fact(error facti) and mistake of law(error iuris), but no provision about this type of mistake. The Supreme Court decided in its judgement that the actors who had such mistakes are not punishable because they are exempted from the responsibility for their acts. Unlike the judicial precedents, there are various theories about this theme. The punishability of an actor who had this type of mistake was studied in this thesis, with its focus on the theories. As a conclusion, it was argued that an actor who was in such mistakes should not be punishable as he or she is not reprehensible.
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