인과관계와 객관적 귀속의 재구성 -부작위범과 ‘규범적 잠재결과설’을 중심으로-

This study aims to reconstruct the issue of causation in result crimes from a normative perspective, focusing on the long-standing doctrinal challenge posed by omissions in criminal law. Previous theories have either regarded omission as a mere ontological “non-act,” leading to theoretical stalemates, or have dismissed causal assessment altogether, thereby undermining the structure of result crimes. In response, this study proposes a new theoretical framework based on a normative redefinition of omission and introduces the Normative Potential Outcomes Theory (NPOT) along with its analytical tool, the Normative Causal Effect (NCE). This paper redefines omission not as a mere physical absence of conduct, but as a normative deficiency—i.e., a deviation from the Expected Normative Conduct (ENC)(“conduct” includes positive actions and omissions). Grounded in the reference point model from cognitive science, this approach enables a coherent normative analysis of partial or insufficient conduct. Based on this normative interpretation, the NPOT shifts the baseline of causal analysis from mere factual inactivity to the normatively expected behavior (ENC), and formulates the causal question as follows: “To what extent did the actual conduct (AC) bring about a change in the outcome compared to the expected normative conduct (ENC)?” This is formalized as a unified equation: NCE＝Y(x＝AC)-Y(x＝ENC) Within this framework, actions are framed as normative excesses and omissions as normative deficiencies, allowing for a symmetrical and consistent evaluative structure. The NPOT offers theoretical advantages such as parsimony, transparency, and objectivity. It integrates the conventional two-step model of factual causation and normative imputation into a single, structured inquiry. In conclusion, the proposed Normative Potential Outcomes Theory (NPOT) sublates the dichotomous opposition between the factualist tradition, which views causation as a chain of objective facts, and the normativist tradition, which understands it as a matter of legal and normative evaluation. It integrates both perspectives within a unified framework:the normative analysis of empirical facts. Furthermore, it holds significant academic merit in that it provides a consistent and integrated analytical framework for systematically reconstructing the structure of causation and objective imputation. Nevertheless, challenges remain—particularly, how to objectively determine the ENC in concrete cases and how to infer and prove unobservable counterfactual outcomes under the standard of proof beyond a reasonable doubt. Despite these limitations, the NPOT provides a theoretically robust alternative that aligns with Article 17 of the Korean Criminal Code and overcomes the limitations of existing theories. By reconstructing the judgment structure for acts, omissions, intent, and negligence, this study contributes to establishing a new legal paradigm in causation theory.