Earticle

초록

영어

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.

목차

Ⅰ. 서 론
 Ⅱ. 착오의 성격
  1. 사실의 착오인가, 위법성의 착오인가?
  2. 구별되는 착오
 Ⅲ. 학설의 내용과 평가
  1. 학설의 구분과 내용
  2. 각 학설에 대한 평가
 Ⅳ. 결 론
 참 고 문 헌
 

키워드

저자

• 윤상민 [ Yoon, Sang-Min | 원광대학교 법학과 교수, 법학박사. ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  원광법학 [Journal of Law research]

• 간기

  계간

• pISSN

  1598-429X

• eISSN

  2508-4526

• 수록기간

  1962~2026

• 등재여부

  KCI 등재

• 십진분류

  KDC 360 DDC 340