피해자의 자기책임에 관한 형법해석학적 고찰

Since the mid 20th century victimology has rapidly developed and its development has influenced the interpretations of criminal law. Specificially, the victim typology has become one of the most interesting topics in victimology. Victimologists realized that there were types of victims that in a sense caused the crimes. That provoked many criminal lawyers around the world to study how to take victims' contribution to their own criminal injuries into consideration in their interpretation of criminal law. The present study is a contribution to this topic. In this study, we approach that issue from the perspective of the Kantian conception of freedom and law, which is the sum of the conditions under which one's freedom can coexist with the others'. The legal system considers harming oneself to be within the boundary of one's freedom. Only when a person trespasses on the freedom of another does her activity become a breach of law and result in the commission of a crime. From this view-point the types of activities that a victim contributes to her own injuries are investigated. These activities can be classified into four categories. The first category is the case of the victim being solely responsible for the harm the victim intends and commits the act that harms her. The second is the case of the victim not being responsible for the harm even though she commits the act that harms her. The third one is the case of the victim being responsible for the harm caused by the victim's own endangerment to herself. The fourth category is the case of the victim not being responsible for the harm that caused by her own endangerment to herself. These types of criminalist issues can be approached using traditional criminal law interpretations. However, the traditional approach provides only with some ad hoc resolutions on superficial grounds. Victimological principles were proposed by German criminologists as leading guides for interpreting criminal law clauses in victims' self-harming and self-endangerment cases. These principles are examined and the following observations are found: the consolidating interpretation of criminal law clauses based on the victomological principles is inadequate because it drastically reduces the scope of cases that should be regarded as crimes. In turn, it considers a wider range of acts not to be crimes, which does not fit with common understandings of crimes. The author proposes that the victim's own contributions to self-harming or self-endangerment should be taken seriously. Under the criminal law, the unity of ‘intent - act - result' must be present for a person to have sole responsibility for the harm that she either caused(criminal) or she suffered(victim). Without the unity of all three components of the victim, it is possible that partaker other than the victim herself is responsible for the harm that occurs.