미국 형법상 위법성조각사유의 전제사실의 착오

The problem of mistake of justificatory facts has been one of the most controversial topics in both Korean criminal law and German criminal law. Putative self-defense, a typical case of mistake of justificatory facts, is used to describe a situation when an individual reasonably believes that he is in danger but in fact is not. A number of very scholastic and sophisticated theories have been suggested about how to deal with this topic in both Korea and Germany. Most US courts adopt the reasonable person standard when they decide whether a claim of putative self-defense is a valid defense. Current case law in the majority of US jurisdictions provides that defendants who act unreasonably in self-defense should not be exculpated. There is an objective and subjective dichotomy in determining whether the defendant's self defense was reasonable. In mistake of justificatory facts the test should balance subjectivity and objectivity. Some US courts reason that the factfinder must hold the accused to the standard of a reasonable person in the defendant's situation. However, other courts argue that defendant's liability should be judged objectively. Unlike Korean and German theories that deal with a mistake of justificatory facts, US courts opinions are based on flat legal thinking because they rely on the simple concept of reasonableness. However, Korean and German theories about a mistake of justificatory facts are based on structured legal thinking and are very scholastic and sophisticated. Korean and German legal theories are more systematic and contribute to proper punishment in a criminal case. However, US courts opinions are relatively simple and easy for a lay person to understand. The author of this article argues that Korean criminal law scholars have to pay attention to US case law for the purpose of harmonizing Korean law with Anglo-American law and establishing a unique criminal law system of Korea.