허용된 위험의 법리와 과실범구조의 변화

The Allowed Risk Theory and Change of Negligence Theory in Criminal Law

There are many risks in modern society. Without suffering from a little bit of risk, we can not enjoy many convenient high-technology such as a bullet train, airplane travel and etc. In this area some risky activities should not be punished as negligence even though the actor thought some possibility of disaster or incident before his act or ommission. If we ban all sorts of risky activities, the society will be put to an end. Since 1900s in Germany the scholars argued that some risky activities should be tolerated and not be punished to promote risky scientific experiments and invention. Today this allowed risk theory in criminal law has been discussed as a cause for exclusion of illegality of some medical operation or sports events. This discussion also changed the structure of negligence theory in criminal law. The old negligence theory has been consisted of a failure to prospect a future result as consequence of a risky act. But new negligence theory after the advent of allowed risk theory, negligence is now understood as violation of objective duty to take a necessary measure to prevent disastrous results in risky life areas. To develop this allowed risk theory much efforts and cases should be accumulated, because our legal circles do not have much experience apply this theory in practice. For example, a risk and dangerous medical operation should be allowed and not be punished and even if there happens a bad result for the patient to promote a new treatment for incurable diseases.