형사상 중과실 해석･적용의 판단기준 - 구성요건실현의 개연적 상황 -

The concept of gross negligence is used to regulate issues that have arisen from the technical and industrial development as well as traditional penal offenses. Nonetheless, there are only few discussions on gross negligence, and the cases in which gross negligence was recognized are hard to be found. Hence, this article aims to review the interpretative criteria of criminal gross negligence while expecting the application of the punitive provisions on gross negligence. There was a single provision on gross negligence in the Criminal Act that had been applied from 1948 to 1953, but now there are numerous provisions in current Criminal Act. Those provisions are usually concerned with protecting the environment and resources, protecting the public safety from hazardous substances, providing safety net for particular transactions. Apart from the type that is an aggravated form of negligence, professional negligence exists to immediately impose severe condemnation, regardless of the violation of duty of care. Professional negligence and gross negligence are selectively stipulated in some provisions whereas gross negligence is solely stipulated in other provisions. Thus, it can be assumed that the lawmaker assigned different roles to each one. If the duty of care pertains to the relevant task, the provisions on professional negligence would be applied; if the duty of care does not pertain to the relevant task, the illegality of the violation should be severe in order for the provisions on gross negligence to be applied. While speaking of the concept of gross negligence, it is crucial to point out the contents of negligence that has fundamentally increased than the regular negligence. The nature of negligence is failing to fulfill the duty of care to prevent such results, not specifically violating the benefit and protection of law. Since the duty of care is objectively evaluated, the duty of care in terms of gross negligence is due to not avoiding the realization of elements of crime that was easily foreseen. When the illegality of such gross negligence is recognized, gross negligence would be validated whether or not the offender was aware of the negligence. If it could be objectively evaluated that the offender could have easily predicted the realization of elements of crime, regardless of whether the offender was aware of it, gross negligence can be validated. Even in cases in which gross negligence was addressed, when the result of elements of crime or the occurrence of such peril could be objectively recognized irrespective of the offender’s awareness, the offender’s act was judged as gross negligence. This would be the reasonable interpretation and application of gross negligence.