환경범죄에 있어 인과관계 확정의 문제점 - 독일 피혁스프레이 사건에 나타난 문제점을 중심으로 -

A traditional cause and effect relationship theory based on conclusive conditional relations reveals its limitations for adjudging liability for today’s environmental crime and/or product liability. The German Supreme Court’s ruling on protective spray for leather reflects a new issue of a causal relationship formed by communal decision along with a difficulty in proving such a causal relationship. By piecing together various situations, the court actively sought to prove criminal liability with a liberal evaluation of evidence conducted by a judge and legal theories. The ruling served as a warning to the field of environmental crime, which is extensively committed by companies today. In this respect, it can be highly valued. However, for an acknowledgement of general cause and effect relationship, the court does not directly clarify the causal relationship between the problematic product and its effects on health, but excludes potential contributing factors. Also, for acknowledgement of specific cause and effect relationship, it establishes all executives who participated in the decision of not recalling the products as joint principal offenders. In this respect, it leaves many problems for the application of legal principles. In recent times, the difficulty of acknowledging a causal relationship in the field of environmental crime in Germany is becoming severe with each passing day. In order to overcome such difficulty, the academia in Germany strongly claims that rigid proof of casual relationship should be replaced or supplemented with probability. Today, many environmental crimes are committed by omission in that executives who serve as guarantors simply abandon. Unlike a crime of commission, the crime of omission does not have practical action of power. Thus, as an action–reaction relationship, the probability of “if expected action were committed, a risk to the benefit and protection of the law would have been reduced” rather than a causal relationship between action and outcome becomes important. Given this fact, it is possible to apply a risk increase theory. However, unlike a general causal relationship theory, the risk increase theory, as a theory acknowledging causal relationship at such a modified level, can be considered as a supplementing theory in the case where a rule of thumb does not exist for the crime of omission and possibility of omission causing a result, or where providing evidence is impossible even with scientific methods. Furthermore, the concept of risk in the risk increase theory is not simply an embedded risk, but “a risk that can cause a Tatbestand-like act of infringing the benefit and protection of the law.” Thus, a decision of whether a risk will increase should not depend on impression of the action, but should be made by reviewing all situations after the result. As a rule of thumb, scientific and statistical knowledge should be used for making the decision. The logic of applying the risk increase theory to the field of environmental crime still requires a great deal of supplementary data theoretically. However, in today’s context where risk has been generalized, it is desirable to use the theory as an efficient criminal tool by conducting detailed research of possible specific areas and requirements to which this theory can be applied, rather than being bound by the causal relationship theory of traditional criminal law and denying it.