허용구성요건착오에 관한 입법론의 제안

Although there has been lots of discussion about legal effect of corpus delicti mistake, we couldn’t have a clear answer to it. Being inspired by this problem, I tried to reasonably solve the problem of legal effect of corpus delicti mistake, by reviewing existing discussion. To do this, above all I studied the validity of its legal effect, compared with forms of mistake by whether or not there is a subjective justifying constituent. That is to say, studying legal effects of accidental defense which is related directly or indirectly, I tried to draw a scope of reasonable criminal liability about an agent who believes corpus delicti mistake. As a result, I think that analogical interpretation of corpus delicti mistake is valid because there exists a subjective justifying constituent which responds to intention in that whether or not it is legal should be considered with both act-oriented -value and effect-oriented-value, but internal factors of an agent which is expressed by action might be an important indicator about legal assessment. That is to say, if basically we should apply such a legal logic as inability of a would-be criminal despite impossibility of an effect because there is no criminal intention as an internal element of an agent; without a subjective justifying constituent and with an objective justifying constituent like an accidental defense, the reverse could also applies; without an objective justifying constituent and with a subjective justifying constituent like a mistaken defense, so in this case I think that under the principle of nulla poena sine lege : the principle of legality, we should give the benefit to an agent. Therefore I think that under the principle of “in dubio pro reo”, it is reasonable to apply analogical interpretation of corpus delicti mistake, because there exists a subjective justifying constituent to an agent who believes corpus delicti mistake as permitted. That is, since an agent of mistaken defense, mistaking it as justified situations, committed a crime by not paying one's normal attention, criminal negligence, or an offense committed through negligence, could be to blame for it. And if this agent of mistaken defense commits a crime due to terror, fright, agitation or embarrassment during nighttime or under insecure states, it will be desirable to apply the existing Criminal Law article 21 item 3 to that case. So I suggest that we should apply the existing Criminal Law article 13 and article 21 item 3 to that case at the same time. For instance That is, regarding the existing Criminal Law article 21, by enacting a new one; Article 21-2, in item 1, “When an act is done under lack of understanding a constituent as a criminal element because of mistake, it shall not be punished. But if one commits a mistake, there is one’s negligence and there is punishment code, it shall be punished.” And in item 2, “Previous item 3 shall apply considerably.”, Regarding corpus delicti mistake as permitted, arguments in academic circles and problems in practical affairs could be solved.