미국 형법상 법률의 착오에 대한 검토

This article examines the treatment of a mistake of law under the U.S. criminal law. The general principle that a mistake of law does not constitute a defense had been deeply rooted in the American legal system due to the maxim “ignorance of the law is no excuse.” However, as the criminal law has become increasingly complex, the legitimacy of this maxim has been challenged and exceptions to the general rule that a mistake of law does not constitute a defense have been recognized. In particular, the U.S. Supreme Court has recognized a mistake of law as a constitutional defense where an actor failed to recognized the illegality of his conduct (i) because he relied on an official statement of the law, or (ii) because fair notice of the law was lacking. In addition, the U.S. Supreme Court has held that an actor's knowledge of the illegality is a culpability requirement for the commission of a crime when the criminal statute defining the crime requires “willfully” as a mental state. Such decisions of the U.S. Supreme Court have been reflected almost verbatim in sections 2.04(3) and 2.02(9) of the Model Penal Code. There has been no distinction in the legal treatment of “ignorance of law” and “mistake of law” under the U.S. criminal law, which may be another basis for criticism of the Korean Supreme Court's failure to recognize an ignorance of law as a mistake of law. It seems also necessary to revise Article 16 of the Korean Criminal Code to make the definition of “justifiable cause” more specific by referring to Section 2.04(3) of the Model Penal Code, which provides more specifically when a mistake of law constitutes a defense.