반전된 착오의 구분과 체계적 지위

Distinction between “reversal Mistake of Fact” and “reversal Mistake of Law”

The mistake is subjective notion that is not in accord with the objective facts and includes not only negative mistake but positive mistake. These are so-called “reversal mistake” relate to positive mistake. In reversal mistake is also divided into mistake of fact (Tatbestandsirrtum) and mistake of law (Verbotsirrtum). There are case where the doer is subjectively mistaken in the existence of the objective circumstances of configuration requirement (Tatbestand), although such circumstances did not exist in fact. Reversal mistake of law is recognized when an actor commits a crime with the positive awareness of his act's illegality. To admit reversal mistake of law, the doer must have subjectively knowledge of the circumstances of “Tatbestand”. Korean Criminal Code contains provision about reversal mistake of fact (impossible attempt), but no provision about reversal mistake of law (hallucinatory crime). Under article 27 of the Korean Criminal Code, when a person commits a crime misunderstanding that his act constitutes a crime under existing acts, there is impossible attempt. The hallucinatory crime is a case to misrecognize his conduct to be come under a kind of prohibited norm not even being existence. Notwithstanding the provisions and judicial precedents, there are controversial theories about the proper criterion of determining reversal mistake. There are similarities between error facti and error iuris related to reversal mistake. A criterion of distinguishing reversal mistake is whether the mistake related to “Tatbestand” or not. The distinction of reversal mistake was studied in this paper, with its focus on the theories of criteria and in connection with the decisions of the Korean Supreme Court. We examined reversal mistake of fact and reversal mistake of law have different structures. This paper suggests a reasonable way of the exertion to settle and clarify the reversal mistake, and that of the investigation to found concrete bases for the distinction after analyzing the competing opinions.