과실범 공동정범 및 과실범에서의 정범과 공범의 구별 - 실화죄 과실경합 등 비의료영역에서의 과실범과 의료과실의 비교를 중심으로 -

Will omission negligence be recognized only after a review of the equivalence requirements of Article 18 of the Criminal Act, or will there be no difference in the case of negligence offenders who are not intentional offenders without going through the equivalence requirements of Article 18 of the Criminal Act, whether they violate the duty of care by act or omission in the provisions of the negligence offender itself? There will be provisions for negligence crimes that presuppose only the act of act in each provision related to negligence, and there will be crimes that can be established in each provision even if they commit negligence in any form of omission or omission. It is thought that the word negligence criminal is already included regardless of whether it is an act of act or an act of omission. In the case of an intentional offender, for example, in the case of intentional murder, it is necessary to undergo a strict examination of the equivalence in the case of killing a person by act and in the case of killing a person by omission, but in the case of manslaughter by negligence, the need to strictly distinguish between the crime of act of negligence and the crime of negligence of omission as in intentional offenders will be reduced. Therefore, it is thought that the need to go through the correspondence procedure with the strict act of Article 18 of the Criminal Act is also reduced. The crime of manslaughter is only a crime of manslaughter, whether it is a manslaughter by act of negligence by omission. Article 14 of the Criminal Code states, "Any act of neglecting to pay attention normally and failing to recognize the fact that it is an element of the crime shall be punished only if there are special provisions in the law." Neglecting normal attention does not necessarily mean neglecting only by act. Whether it is an act or omission, if you neglect normal attention, you become a negligent criminal. In other words, Article 14 of the Criminal Code already contains the aspects of the act of act and omission. Article 347 of the Criminal Code can be seen as including both aspects of conduct, whether fraud is committed as an act or omission, and in both cases of abandonment and breach of trust, it can be said that the act of negligence under Article 14 of the Criminal Code is included in both the act of negligence. If the guarantor's obligation, that is, the guarantor's duty to act, is an element of illegality, will it be necessary to review whether or not this part is illegal in the second stage of the crime? I think the guarantor's duty to act is not an element of illegality, but an element related to the applicability of constituent requirements. Therefore, the duty to act will have to be reviewed in the applicable constituent requirements. If it is judged that the guarantor's duty to act is an element of illegality, the criterion for reviewing whether it falls under the reason for illegal sculpture - whether it is illegal or not - will be the perspective of the entire legal order. In light of the reality that the existence of the duty to act is not comprehensively reviewed from the overall perspective but is reviewed by individual articles, the guarantor's duty to act is bound to be seen as an element related to the relevance of constituent requirements. For example, whether there is illegality in the crime of obstruction of the execution of public affairs is to examine the legality of the execution of public affairs individually, and in the crime of receipt, whether there is an intention to obtain illegality or illegality of such an act. The word "duty" is included in the duty to protect property interests in the crime of breach of trust or the duty of care in the crime of negligence. Will it be viewed as an element of illegality because it is a "duty"? The duty to protect property interests for breach of trust, the duty of care in negligence, and the status of a guarantor in an omission are constituent elements, and the duty of guarantee in an omission should also be viewed as a constituent element. As it is a normative component, an error in obligation becomes a component error. Since it is a component error, intentionality may be excluded, and in some cases, an error/prohibition error of illegality may occur in the responsibility stage. If so, is it judged whether there is a guarantee obligation at the level of conformity to the constituent requirements, and reviewed whether there is an error in the guarantee obligation at the level of illegality? There is no theory that does not judge the guarantor's obligation at the level of constituent requirements. The proposition that all errors in constituent requirements are component errors is not correct. Errors in normative components are in some cases component errors, and in other cases, illegal/prohibited errors, and are treated as deliberately recognized pieces of responsibility. The normative component is a constituent component, but the error may be a component error, and in some cases, an error may be a component error, and in some cases, an error may be an illegal error. If an accomplice and a regular offender in a negligence criminal are not distinguished and treated as a common offense of a negligence criminal, it is like severely punishing an accomplice as a regular offender, which violates the principle of prohibiting excessive punishment. The reason why the single criminal theory is not appropriate compared to the theory of the distinction between regular and accomplices is that if only the single criminal theory is taken, it cannot limit punishment as much as punishment as an accomplice, and even if all are considered regular criminals, even if they can be handled at the sentencing stage, this may not have a clear effect of limiting punishment compared to classifying them as accomplices, not regular criminals. In the case of medical accidents, prosecution is often filed as a joint criminal of negligence or a joint criminal of omission. Perhaps, when prosecuted as a joint criminal, it is judged that this is because there is no need to prove a causal relationship between the involvement of individual actors and the constituent results of it, compared to individual prosecutions as a regular offender or accomplice. However, when it comes to a joint criminal, it is also judged to be unfavorable to the suspect or the accused that the problem of difficulty in proving is diluted and the causality can be estimated or considered compared to the competition of single criminals or accomplices. In this paper, the change in the court's ruling attitude between medical and non-medical negligence was analyzed from a theoretical point of view.