미국에 있어 커먼로상의 방화와 제정법상의 방화죄에 대한 연구

At common law, arson was the malicious burnings of the dwelling house of another. Hence The crime was committed against habitation, not against property. The definition of dwelling for purposes of this crime was identical to that applicable to common law burglary. The requirement of another referred to possession, not ownership. The common law required that the dwelling be bumed, but it did not haveto be burned completely. Earlier cases established the requirement that there must be a burning, not just a smoking. A final requirement of common law arson was a criminal intent. Ncgligence was not sufficient to establish arson, nor was there a felony arson crime analogous to felony murder. A fire that resulted from the commission of another crime was not arson. The modern trend has been to expand the scope of arson crimes to include many items other than "structures"- effectively transforming the crime into one against property. Although some jurisdictions retain the common law definition of arson, others have expanded the crime to include the burning of many structures other than dwellings and the burning of one's own structures. Some statutes eliminate the requirement of actual burning and permit an arson charge when damage is caused by an explosion that does not result in a fire or when a fire that is started purposely does not burn the structure in question. But it must be shown that the actor had the intent to damage or destroy that structure. Most jurisdictions also have statutes to punish persons who recklessly start a fire or who unlawfully cause a fire. Such offenses differ from arson in that they may not inc1ude the "knowing and malicious" requirement necessary for the crime of arson.