위험사회에서 Jakobs의 기능적 책임론에 관한 재론(再論)

Today we live in a risk society where a variety of crimes could occur at time. In this society, the members of it require a positive intervention of Criminal Law so as to prevent crimes in advance. So I'd like to review the necessity of Jakobs's functional responsibility in the aspect of preventive Criminal Law by reviewing the relations of responsibility and prevention in order to achieve the objectives of Criminal Law in a risk society. As we have already known, Jakobs's functional responsibility insists that for the stabilization of the system of society we should replace the concept of responsibility with the objectives of punishment, at the functional aspect, and insist positive general prevention. That is, in the perspective of Jakobs, we could maximize the protective function of the Criminal Law thanks to imposing responsibility on doers considering the objectives of the Criminal Law at the aspect of prevention of crime. However, this viewpoint of Jakobs might lead intrude the ensuring function of the Criminal Law relatively, and make stat's severe punishment intensified due to inclination of criminal policy of the Criminal Law. But I think that if we could eliminate or prevent the danger of crime by a positive intervention of a state, we might as well consider the function of the Criminal Law as worry the dysfunction of it. Of course, there would be a limit that a criminal policy should be within the domain of the Criminal Law, but a Criminal policy could be a useful tool to make the Criminal Law well-functioned. But we should do that on condition that we have to consider the prevention of crime in the objective of punishment and pursue the objective of the criminal policy within the domain of the Criminal Law. Therefore within this prerequisite, there could not be a problem if there would be the objective of the criminal policy in the concept of responsibility of the Criminal Law. Because if the objective of the Criminal Law is considered in functional aspect, in the criminal practice the degree of sentence can be serious or light depending on the situations. As a matter of fact, in the theory of the Criminal Law, it is important not only to reconstruct the fairly connotative concept of responsibility but also to reasonably judge the function of punishment justification and restriction about an agent. Especially in the 21st century considering an increasing number of computer and related intellectual crimes, terrorism, and ferocious crimes, in order to enhance the possibility of punishing an offender the theory of Jakobs's functional responsibility which strongly reflects the foundation of utilitarianism of the preventive Criminal Law could be attractive in criminal policy practice. Therefore the theory of Jakobs's functional responsibility which is an alternative to coping with today's risk society count enough.