불법평가에서 주관적 정당화요소의 의의

When there is a practice which precludes legal wrong, anti-value of consequences may be offset but anti-value of acts cannot be offset, and thus subjective element of justification is required. This is the most general opinion. However, this viewpoint cannot get along with a methodology, which claims that the whole being cease to exist even if only one condition of existence out of two conditions is missing. In case of a situation when illegality is precluded, it is more logical to argue that the subjective element of justification is required because anti-value of consequences is not completely removed. The role of subjective element of justification is to remove intention under the principle distinguishing objective and subjective elements of a criminal offence. Therefore, as a structure corresponding to intention, the contents of subjective element of justification would be acknowledgement of justification and willingness of justification. Here, willingness means that one acted simply because it was a situation to be justified, and he or she does not need to have a motive to put the situation in a right place. Practices which lacks subjective element of justification but caused a good consequence accidentally should be understood to form an unlawful act. In this case, such accidental situations could be considered in the examination of the offence. The subjective element of justification is also required in crimes of negligence. Since the nature of negligence lies upon the duty of care, the contents of subjective element of justification would be acknowledging the situation to be a justified situation. Cases that demand to identify the necessity of the subjective element of justification would possibly be cases that hardly happens in reality and thus made up artificially, in both deliberate offences and negligence while it would be true especially concerning negligence. Therefore, theories discussing the subjective element of justification are not so much significant.