이른바 ‘방법의 착오’의 법적 성격

The equivalence theory says that the knowledge of facts as a content of criminal intent means the knowledge of objective elements of the crime, but the concretization theory says that it means the knowledge of objects individualized in time and space, belonging to the knowledge of objective elements of a crime. A way of dealing with the case of ‘aberratio ictus’ depends on each theory. The theory harmonizing with the provisions of criminal law and the interpretation of them would be valid. The Korean Criminal Act has the provisions that have a same criminal act, but an individualized object. And also there are the provisions premising an individualization of object. Criminal intent means the knowledge and will to realize the objective elements of the crime, and the knowledge of the causality between action and result is a content of criminal intent. So It is contrary to the definition of criminal intent to recognize an actor’s intent about the result that an actor did not intend to realize. In conclusion the concretization theory is thought to be more naturally in harmony with the provisions of the Korean Criminal Act than the equivalence theory. Therefore ‘aberratio ictus’ should be distinguished from ‘error in persona vel in objecto’ and be understood as the mistake of its own uniqueness where the actor’s mental link to the intended object differs from that to the actually harmed object.