형법 제16조 법률의 착오에서 ‘정당한 이유’의 판단기준

• 영문명: On the Judgement of the ‘Reasonable Grounds’ of the Mistake of Law in the Article 16 of Korean Criminal Law
• 발행기관: 충북대학교 법학연구소
• 저자명: 최정학(Choi, cheong hak)
• 간행물 정보: 『법학연구』第26卷 第1號, 175~196쪽, 전체 21쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2015.06.30

영문 초록

The Article 16 of Korean Criminal Law says a ‘Mistake of Law’ shall not be punishable if the misunderstanding is based on ‘Reasonable Grounds.’ The ‘Grounds’, however, can be differently interpreted and applied depending on the respective circumstances of each criminal, because it is the part of subjective responsibility. Even though it is the case, this essay asserts that we need a few of criteria which can make it possible and consistent to judge the Grounds. So far, the criminal court and some researchers have tried to make these criteria, but, this essay finds those ones also too strict, sometimes contradictory each other as well. Therefore, this essay suggests that we should interpret the duty of the criminals considering the illegality of the act lighter than now. For example, the actor who believed the advice of the public or government offices should not be punished, because his/her mistake of law is reasonable and (if any) the legal responsibility should be asked to the offices themselves.

목차

Ⅰ. 머리말

Ⅱ. ‘정당한 이유’의 판단을 위한 전제문 제들

Ⅲ. 정당한 이유의 판단 과정 및 기준

Ⅳ. 맺음말

키워드

법률의 착오 정당한 이유 위법성 인식의 계기 숙고의무 조회의무 Reasonable Grounds Mistake of Law Article 16 of Korean Criminal Law Duty of Criminals (Criminal) Responsibility