Criminal Conduct Under the Influence, Dilution of Virtue

Alcohol is not only one of the most harmful substances worldwide; it is also one of the most commonly abused. This dangerous commodity is considered the sine qua non of after-hour happiness by the thoughtful and generally law-abiding people of Korea. As is true of the longstanding global trend, the pervasiveuse of alcohol in Korea is related to a variety of economic and social harms, including drunkdriving, violence including domestic violence, crime and other disruptive conduct. According to popular opinion, the legal response to alcohol related crime in Korea is too forgiving, as evidenced by the public outcry at the mitigated punishment meted out against the intoxicated offender in the Na-Young child rape case in 2012. It is imperative that criminal law not appear to fail in its normative objective due to theoretical and practical difficulties by allowing a self-intoxicated person who commits an unlawful act to escape punishment or receive a lesser punishment than would a sober person who commits the same act. This paper provides a comparative overview to suggest that while the culpability of the intoxicated offender in Korean, Anglo-American and German Law is commonly based on imputed liability arising from the prior fault of intoxication, the theoretical underpinning of which is logically suspect, inculpation is neverthelessethically warranted, reflecting the pragmatic reality of addressingthe anti-social behavior of the intoxicated offender as a harmful moral agent. The author suggests that Korean lawmakers consider a responsibility theory of criminality that bases blameworthiness (Schuld) on the dangerousness of behavior rather than any fictional imputation of recklessness or other intent associated strictly with the act of voluntary intoxication. However, because the effect of alcohol and behavior is very complex, and it would be difficult for a person to know the degree of intoxication to avoid, a concerted campaign of education on the harmful effects of alcohol should be an element of a sound national policy. The author also suggests that the well-meaning and honorable legislators of the National Assemblyof the Republic of Korea either act to prevent mitigation or provide specific guidelines for the mitigation of sentencing, while further mandating and enhancing therapeutic treatment options, for intoxicated offenders.