시스템 위험과 과실범 ― 안전과학의 관점에서의 형법의 과실범 이론의 평가 ―

In the development of criminal law theories of negligence, negligence has traditionally been defined as a breach of a duty of care, and negligent actors have been regarded as deserving of criminal punishment to the extent that they are blameworthy for failing to comply with objective standards of care. However, this traditional theory of negligence is ill-suited as an analytical tool for determining criminal liability for negligent conduct occurring within socio-technological systems that are indispensable to everyday life. From the perspective of safety science, accidents are not the result of isolated human failures but emergent phenomena arising from the gradual migration of socio-technological systems toward the boundary of functionally acceptable safety. In this context, human “negligent conduct” should not be understood as irrational or inherently blameworthy; rather, it reflects locally rational and normal choices made within constrained environments. Even when such conduct is retrospectively identified as contributing to a disaster, it remains normal conduct within the system. When assessed in light of these insights, the prevailing approach to criminal negligence faces serious theoretical and practical limitations in addressing systemic accidents. The traditional theory of negligence must therefore be revised and supplemented. As one such attempt, this article proposes the adoption of differentiated standards for evaluating negligence in relation to conduct occurring within socio-technological systems.