형법상 불확정 개념인 ‘정당한 이유’에 대한 고찰

In Korean Criminal Act and other punishment provisions of Koean Law, we can find indeterminate concepts such as reasonable grounds, reasonable cause, and substantial grounds that exclude the establishment of a crime. The ‘reasonable grounds, etc.’ that appears in Korean Criminal Act provisions and special criminal law provisions is an element of the reason for excluding the applicability of the elements of the elements, and the function as elements negating the conformity to the constituent elements of a crime. In contrast, the “reasonable ground” under the mistake-of-prohibition provision(Article 16 of Korean Criminal Act) operates as a ground for negating culpability. The ‘reasonable grounds, etc.’ and reasonable ground of the prohibitive error provision have something in common in that the provision is made real by the judge’s interpretation. However, while the actor can make a mistake even if he or she is not aware of the ‘reasonable grounds, etc.’ in the punishment provisions, it is impossible for him or her to be aware of or make a mistake in the reasonable ground of the prohibitive error. If he or she makes a mistake about the ‘reasonable grounds, etc.’, this mistake should be regarded as an error of inclusion, and the prohibitive error provision should be applied to make the judgment. However, courts interprets ‘reasonable grounds, etc.’ inconsistently, so from the actor’s perspective, he or she is faced with a double difficulty of the impossibility of recognizing the uncertain concept and the inconsistency of interpretation. While the court should make consistent judgments on ‘reasonable grounds, etc.’ by formalizing detailed criteria, it should apply Article 16 of Korean Criminal Act more broadly to cases where ‘reasonable grounds, etc.’ is denied. Furthermore, from a legislative perspective, ‘reasonable grounds, etc.’ should be removed from the regulations as much as possible.