형법상 인과관계의 객관적 귀속 이론과 대법원의 판단기준

Abstract

A certain relation between activity and result, that is to say, the issue of causation in Criminal Law is vitally important. Whether or not the result only occurred as a consequence of some requirements for an activity being met reverts to the person who did it has been the issue of causation in Criminal Law, which is being discussed thus far. Article 17 in Criminal Law stipulates that "if any activity is not linked to the occurrence of risks that become the element of crime, such an activity is not punished owing to its result." The theory of causation is a controversy over "the linkage to the occurrence of risks becoming the element of crime" which is set forth as a criterion for linking the activity with result, Article 17, especially over the definition of the meaning of the "linkage." However, that the issue of causation in Criminal Law which has important implications is attempted to be settled with only the said Article -the definition of the appropriate scope of the criminal attribution or reversion that the Criminal Law targets- is very difficult. In addition, as Article 17 is pretty much an abstract concept, the suggestion of the specific content and measurement for it should be left with judicial theories and precedents. From prior to the legislation of Criminal Law, the Korean precedents has seen the issue of causation in Criminal Law settled in terms of the theory of the Substantial Relationship of causation, in which the "Substantiality" is the criterion of judgment. In most case, the majority of their expressions in writing as well has been made without the process of the specified reasoning. They have been recorded as "there is a substantial relationship or there isn't." From the perspective view of the daily life experiences, as the judgment of "It is substantial" is overly abstract, the several contradictory conclusions could be possibly brought in. Rather, the convenience that any conclusion could be reached tend to overly prefer the "substantiality" and the precedents judge the causation based on it. Along with it, on the one hand, some precedents show the conclusion that the issue of causation has been likely to be settled with an objective attribution Theory with an exception of some vital normative judgment, given that it could not be settled only by considering its pure factual aspects. This is about whether the result occurred is to be reversed to what its doer created and is deemed a thing that the Korean courts are sufficiently in agony over what is more reasonable in the course of a judgment seeking a justice. Finally, in summary, with regard to the activity that becomes a cause for its result after identifying the existence of causation about the relationship of cause and result, the approach of the objective attribution theory that reviews the issue of the criminal attribution as a criterion for norm, separately of the relationship of the causation in natural science could be a more persuasive specified reasoning method than the simple expressions, such as "There is a substantial relationship of causation or there isn't" without the special detailed reasoning process or judgmental process as an overall atmosphere for a judicial precedent, in deducing the reasonable conclusion.