현대 인지과학적 접근법에 비춘 형법의 책임론 —시원성 개념에 대한 비판과 타행위가능성 개념의 객관적 성격에 대한 분석을 중심으로—

Libet’s theory will loose its’ persuasive power when the concept of free will be liberated from completeness and solidarity. It is not necessary to prove or assume an original will that is not affected by any other factors. Our intention is formed in the connection with physical, physiological, and psychological conditions inside and outside of us. It is an arrogant approach that a human being possesses a perfect free will throughout every single moment. Rather, based on perspectives of cognitive science as well as jurisprudence, it is acceptable that a human being is influenced and sometimes dominated by many other causes but can act in the direction of his own will. The concept of relative possibility of alternative action can explain the condition of freedom, although a complex chain of causation does not let a human being totally free. ​ We can start from the relative possibilities and functions of control and transcendence inside of a human being, which can realize a free will. Then, it will be a reasonable alternative to deal with the concept of free will based on the issue of whether there was a possibility of other actions. This paper wants to argue for the compromise view that the objective determination of intention has a nature of ex post facto inference.