형법상 “(불)인식”,“오인”,“착오”에 대한 문언 차원의 분석

‘Mistake’ is a major theme in criminal law and has been the subject of extensive scholarly discussion. However, relatively little attention has been given to the textual meanings of the statutory provisions that regulate mistake—specifically, the main text of Articles 13, 15(1), 16, and 27 of the Korean Criminal Act. This article focuses on a close textual-linguistic analysis of these provisions, aiming to distinguish the scope of mistake that is explicitly regulated by the Criminal Act from that which is not. By doing so, it attempts to establish a precise foundation for further theoretical discourse on mistake within criminal law. First, regarding ignorance under Article 13 and Article 15(1), this paper argues: (1) the term "awareness" must encompass not only sensory recognition but also conceptual understanding and classification; (2) elements of volition must not be incorporated into the notion of awareness; and (3) the object of awareness should not include the causal process. Next, the article examines misunderstanding under Article 16, focusing on the wording of the provision itself. By doing so, it seeks to determine where existing theories on mistakes regarding factual assumptions underlying grounds for justification are situated in relation to the statutory language of Articles 13, 15(1), and 16. Finally, with regard to the mistake in the main clause of Article 27, this study argues that the term “result” refers, as worded, to the consequence in a result crime and cannot be interpreted as referring to the consummation of the offense. This position supports the so-called “absence of a statutory element theory,” which has traditionally been regarded as obsolete—namely, the view that if the result, among the objective elements of the offense, is lacking, an attempt may be established, but if any other element such as the actor, object, means, or circumstances is lacking, the concept of attempt is excluded altogether and the act is not punishable.