위험범의 판단기준

Abstract

Determining the legal interests protected by individual crimes and assessing the degree of such protection is a highly complex issue. While criminal law textbooks often treat this as a peripheral matter, whether to classify an offense as an injury-based crime or a risk-based crime—and, if a risk-based crime, whether to view it as a concrete or abstract risk offense—is of critical importance to defendants. This classification can determine guilt or innocence, as well as whether the act constitutes a completed crime or an attempt. Similarly, whether the offense is deemed a concrete or abstract risk offense can have significant implications. The degree of protection afforded to legal interests corresponds to the severity of the criminal threat. Injury-based crimes assume a tangible loss of the actual value of the protected legal interest, while risk-based crimes require only the creation of a state of risk. Since the distinction between injury-based and risk-based crimes is not explicitly legislated, it falls entirely within the domain of interpretation. Consequently, this issue has been entrusted to legal theory and case law, and the criteria for distinction remain unresolved and subject to ongoing debate. In particular, risk offenses are further divided into concrete and abstract risk offenses, raising the fundamental question of what constitutes "risk." Case law often acknowledges risk offenses, explicitly using the term "abstract risk offense" but avoiding the term "concrete risk offense." Additionally, some offenses are vaguely classified as risk offenses without specifying whether they are concrete or abstract, creating ambiguity. It has been observed that courts mix factual assessments—reflecting the objective circumstances of an act—with normative judgments when determining the existence of risk. This approach highlights the need for a clearer definition of the concept of risk offenses. Expanding punishable conduct through vague judicial interpretation risks violating the principle of legality (nullum crimen sine lege). As modern society increasingly recognizes and responds to risks, the tendency to expand the scope of risk offenses has grown. This trend underscores the urgent need for measures to regulate and clarify this area of law. In conclusion, it is essential to establish clear and consistent criteria for defining and interpreting risk offenses to balance legal interest protection with the principle of legality. Enhanced clarity in both theoretical discussions and judicial decisions is necessary to prevent the arbitrary expansion of punishable conduct. In an era characterized by heightened societal risks, there must be a robust legal framework to regulate and define the scope of risk offenses appropriately.