형법 제13조 ‘고의(故意)’개념의 재해석과 적용문제

Article 13 of the Criminal Law is about “criminal intent”. Although there have been some recent changes to the Criminal Law, the concept of intent remains unclear. Furthermore, the provisos in Article 13 only provide for exceptional punishment for negligent offenders, without a clear distinction between the principle of punishing intentional offenders and exceptional punishment for negligent offenders. Of course, Article 14 defines the concept of negligence, but in fact, it definitizes the exceptional punishment of negligent offenders and is only a reference to Article 13. Therefore, Article 13 of the Criminal Law can be seen as a combination of the concepts of criminal intent and negligence. However, Article 13 of the Criminal Law does not stipulate a specific concept of criminalization, but only an abstract concept based on the dichotomous logic of criminal intent or negligence as an element or requirement of criminalization. Accordingly, to date, criminal law scholars and criminal procedure practitioners have not been able to draw a clear conclusion on the distinction between gross negligence and willful negligence, which is always controversial regarding the nature of intent. In fact, this problem may lead to deficiencies in criminal punishment for human criminal behavior related to AI in the future AI era. Therefore, in order to provide a useful basis for criminal practice on the application of the concept of intention, I reviewed the nature and interpretation of the concept of intention previously discussed, and as a result, I believe that the new cognition theory, which identifies that the concept of intention is completed by the main cognition and the subordinate intentional elements, is valid. In other words, in criminal procedure practitioners, it is appropriate to infer and apply the concept of intent according to the new theory, and this new theory can be a very reasonable way to interpret and apply various new crimes related to AI in the era of AI. This is because even in the age of AI, AI can never become a person equal to humans, and it is in line with constitutional values to establish the relationship between the main human and the subordinate AI. Therefore, it is appropriate as a direction of future-oriented criminal law to reconstruct the definition of criminal intent based on the new theory for reasonable interpretation and application of criminal law to various new crimes related to AI in the age of AI. Accordingly, Article 13 (“Intent”) of the Criminal Law reads as follows: “An act shall not be punished if the person does not recognize the fact that is an element of the crime and does not intend to realize it. However, exceptions shall be made in cases where there are special provisions in the law.” We would like to propose a legislative theory that clearly states the concept of intent.