위법성조각사유의 전제사실의 착오에 관한 학계와 대법원의 견해에 관한 고찰 ― 대법원 판례의 변천과 관련하여 ―

The German criminal law theories introduced to Korean criminal law academia in the 1980s, particularly those regarding mistakes about the factual premises of justifications, are representative examples. Numerous papers by criminal law scholars have been published on this subject, and the debate remains intense to this day. While the theory of limited culpability directed by legal consequences (Rechtsfolgenverweisende eingeschränkte Schuldtheorie) is currently the prevailing view, it cannot be said that a consensus has been fully reached on any one theory. The Supreme Court of Korea, from the 1960s to the early 2000s, did not interpret cases of putative self-defense as involving mistakes about the factual premises of justifications. Instead, it treated such cases as issues of whether the mistaken belief in the justification was reasonable, thereby addressing the establishment of self-defense. This perspective aligns with the view that, if there is a reasonable basis for the mistake about the factual premises of a justification at the time of the act, it should be evaluated as if the factual premises of the justification existed, thus recognizing self-defense. However, the approach of using an evaluative perspective to deem non-existent factual premises as existing is not appropriate from the standpoint of legal stability. However, through its rulings in 2014 and 2023, the Supreme Court of South Korea has clarified that such mistakes indeed fall under mistakes about the factual premises of justifications. Now that the Supreme Court has explicitly characterized the nature of these mistakes, it is expected to produce more theoretically consistent rulings in future cases involving mistakes about the factual premises of justifications.