과실범죄의 상황관련적 특성과 규범적 판단에 관한 고찰

It is not an exaggeration to say that criminal negligence, unlike intent, which are behavior-oriented crimes, is a crime that is determined based on the subjective element of the situational element in which the offender is placed and the offender's perception of it. Through objective and subjective evaluation of the behavioral situation, it determines whether the duty of care is violated and whether or not there is a causal relationship or responsibility. At this time, there are various opinions on whether the legal evaluation of each stage of the criminal system should be objective or subjective criteria. The situational nature of criminal negligence has given rise to a variety of legal issues. The problem of inconsistency between the objective behavioral situation and the actor's perception, at what point in time should the duty of care be judged in cases of negligence involving multiple actors, and whether to judge the behavioral situation based on the public or on the offender. Such a discussion can be expressed as the interaction between the objective and subjective aspects centered on the behavioral situation. In addition, since negligence is a crime that reflects the need for criminal policy, whether or not a crime is established is strongly influenced by normative factors. This normative element affects all stages of breach of duty of care, causality, objective attribution, and responsibility. Sometimes a single normative element acts evenly on each stage, and sometimes different normative elements affect each stage. For this reason, it can sometimes be found that intuitive and comprehensive judgments are made without special consideration of the criminal system theory stage in the process of judging whether a criminal negligence is established. Alternatively, the same normative element is reflected in all stages redundantly. However, it is clear that the criminal system theory systematizes whether a crime is established or not, guarantees the unity and rationality of the application of the law, and serves as a tool to exclude the arbitrary judgment of the law executor, so it is clear that it is a part that cannot be abandoned even in criminal negligence. Therefore, it is necessary not to lose sight of the criminal system theory by clarifying the types of normative elements considered at each stage so that the establishment of negligence can be judged step by step within the systematic theory of crime.