오상과잉방위와 형법 제21조 제3항

Putativnotwehrexzeß and the Criminal Law Article 21, Clause 3

&nbsp;&nbsp;According to Negative Tatbestandsmerkmale, though a mistake in presupposition of cause of justification has a merit of being suitable to legal ethos of people, the act justified by legal defense is not prohibited from the beginning. Such a logic makes it impossible to give explanation to the person who is offended by the legal defense why he/she has the obligation to bear such infringement of his/her legal right.<BR>&nbsp;&nbsp;Also, while the Criminal Law and the cause of justification are found to be dealing with areas of different levels; the criminal law identifies what are prohibited in the scope and the limitation of crime by means of prerequisites; the cause of justification performs the assessment in establishing the limitation of punishable violation of law, the Negative Tatbestandsmerkmale has a weak point in that it ignores such factors.<BR>&nbsp;&nbsp;With those theories being excluded from consideration, Limited Liability Theory and Strict Liability Theory are left. To say my conclusion first, the latter is more in harmony with our criminal law system than the former.<BR>&nbsp;&nbsp;First, in order to guarantee rightful judgement of a crime, we have to perform individual evaluations of the crime through examining appropriateness as a constituent, illegality and responsibility. At this time, any evaluation method(standard) used and any factor measured in one area should not be used or measured in other area, in an attempt to avoid unreasonable judgement and evaluation. Or, it gets hard to prevent arbitrary involvement of evaluation, which is a benefit of step-by-step judgement of the formation of a crime. Therefore, we can also say that the Limited Liability theory collides with the judgemental logic of criminal law as it uses the intention of crime both in prerequisite and liability. The replacement of intention with the possibleness of the recognition of illegality is illogical as they differ in level.<BR>&nbsp;&nbsp;Second, according to the criminal law which clearly divides the misapprehension of a fact and the mistake of law, the latter premises an act that is a prerequisite unlike the former that constitutes an deliberation, which judges the crime as an intentional offense.<BR>&nbsp;&nbsp;This does not change in case of a mistake of premise of the cause of justification. Nevertheless, the Limited Liability theory considers such a mistake as a negligence, not as a intentional offense.<BR>&nbsp;&nbsp;Third, the Limited Liability theory lacks the logical balance considering that a mistaken self-defense is not by a liable purpose as it has no legal will of confrontation. Because, it is a common sense that almost everyone of legal misapprehension as well as the subject of a mistaken self-defense cannot have any legal will of confrontation. Therefore, insisting that the misunderstanding of the prerequisite of the cause of justification is not a liable purpose as it lacks legal will of confrontation cannot not be accepted as a universal reason.<BR>&nbsp;&nbsp;Fourth, liabilities in the criminal law can be divided into one as a crime constituents and liability for intention or negligence which are categorized by the kind and the extent of crime.<BR>&nbsp;&nbsp;When we say liability for intention hereunder, it has a limited meaning of liability proportional to the weighing of an offense as a combination of a illegality committed by a constituent deliberation and a liability, one of elements of crime. But, according to the Limited Liability theory, considering a liability for intention, which is an intermediary medium to turn a intentional offense into criminal negligence, as an independent constituent of crime seems to be a jump of logic.<BR>&nbsp;&nbsp;But, there still remains another question whether we can unconditionally apply the Criminal Law Article 16 in accordance with the Strict Liability theory to resolve the problem of legal effect against mistaken self-defense.<BR>&nbsp;&nbsp;The misa