과실의 주관적 정의와 객관적 정의 ― 17세기 이후 영국의 과실범 이론의 발전 과정을 중심으로 ―

This study examines the historical development of the concept of negligence in English criminal law, focusing on its transformation from a subjective definition to an objective definition since the modern era. Traditionally, negligence was assessed with reference to the actor’s free will and moral blameworthiness, with classical theorists such as Matthew Hale and William Blackstone defining negligence primarily in terms of a subjective breach of the duty of care. However, since the nineteenth century, the Industrial Revolution, the advancement of industrialization, and the widespread influence of utilitarian thought have reshaped the foundations of criminal law. During this period, the enactment of public safety legislation, such as the Mines and Collieries Acts, and the increasing codification and managerial control of safety norms led to a shift in the assessment of negligence: it came to be determined not by the inner state of mind of the actor, but by whether the actor complied with objectively required safety standards. This transformation, reinforced by utilitarian reasoning, accelerated the objectification of negligence and ultimately contributed to the emergence of strict liability offenses. Nevertheless, recognizing criminal liability solely on the basis of a breach of duty could give rise to an abuse of penal power. English courts require gross negligence for the offense of manslaughter by negligence and retain a subjective standard in interpreting recklessness, which is a component of more serious offenses, thereby limiting the scope of criminal liability. This study argues that the objectification of negligence was not merely the result of theoretical debates but rather a product of historical and social demands to ensure safety and protect public interests in an industrial society. While the objective definition of negligence is, to some extent, inevitable for maintaining safety in modern industrial systems, there remains a pressing need to establish safeguards against potential overreach of penal authority. Finally, considering that the principle of culpability is recognized as a constitutional principle in Republic Korea, this study contends that the theory of negligent offenses should be refined to harmoniously integrate public safety concerns with the actor’s subjective blameworthiness, ensuring both fairness and effective protection of society.