형법 제10조 제2항에 대한 비판적 고찰-비교법적 고찰을 통한 현행 제도에 대한 분석과 입법안의 검토 및 제안을 중심으로 -

The theory of interpretation(de lege lata) and the theory of legislation(de lege fe-renda) for the Clause 2, the Article 10 of current Criminal Law mitigating thepunishment have been checked in case the responsibility is weak in this study. The development situation of the theory of interpretation in Germany and the p-recedent are analyzed, the diminished capacity scheme of USA similar to the li-mit of responsibility according to the mental and physical weakness is checkedand the diminished responsibility scheme of England is investigated prior to thi-s consideration. It reaches the recognition necessitating the flexible responsible m-itigation through this investigation. The concept of mental and physical disorder has been checked and the cause of mental and physical weakness has been Inv-estigated based on this understanding. The Supreme Court is not including the personality disorder, etc., in the mental disorder by adhering to the previous po-sition still even though there has been the change in the classification of mental disorder in the neuropsychiatry world. However, the personality disorder, the I-mpulse control disorder, the antisocial personality disorder all should be classifi-ed into the mental and physical disorder, the mental and physical weakness or not should be distinguished by judging if it is in the excited state at times of a-ction through the psychological analysis in case of action of passion. The judgm-ent of appraiser and the judgment of judge should be close, the concrete diagno-sis and the valuation creteria should be prepared by the reasonable method incl-uding the judgment standard for this and the judgment standard for the time of crime. The revised tentative plan has been investigated and the legislation bill h-as been presented based on this discussion. The mental and physical disorder in the current regulation is necessary to be classified into the mental disorder, the psychological disorder, the physical disorder; ‘the action owing to the damage o-f legal capacity at time of action has been caused’ should be clearly stated in t-he legislation bill. The mandatory mitigation and the discretionary mitigation are compromised for the flexible mitigation and the harmony of responsibility princi-ples, it may be reasonable for the discrimination to be placed based on the suit-ability or not. Even though there should be the legislative modification, the pre-paration of detailed criterion based on the medical diagnosis is urgent to evalua-te the mental and physical weakness reasonably; more concreted development of discussion shall have to be continued for the mental and physical weakness inthe future based on this alignment.