재난에 대한 형법적 대응 - 과실범, 추상적 위험범 형식의 형벌규정을 이용한 재난에 대한 형법적 대응의 적정성 검토 -

The Role of Criminal Law in the Context of Risk Management of Complex Systems

The principle of individual autonomy is one of the fundamental principles in the criminal law. It is based on the presumption that each individual has the capacity of choosing his or her acts and omissions. Consequently, it is regarded as an indispensable prerequisite to establish the criminal responsibility that the actor could have avoided the infringement of legal interests had he chosen to act otherwise. It leads to the con-clusion that stricter law and harsher punishment would contribute to deter crimes, as fear of punishment will prevent individuals from deciding to commit criminal acts. But this assumption cannot be satisfied in the context of risk management of com-plex systems. According to the logic of the traditional criminal law, errors and viola-tions that are found in the operating system would be qualified as a culpable act which justifies the ascription of the criminal responsibility to an actor. But the study of acci-dents tells us that human failures should be considered as inevitable in operating com-plex systems, so it is not reasonable to condemn those who commit errors and viola-tions in complex systems. With the development of safety science, it is widely accepted that the risk of the system failure is inherent in the operation of the system and organizational accidents emerge through the complex and unforeseeable interaction of the system with the environment. They occur only when multiple layers of defense which are mutually in-dependent fail together, therefore those who work in the complex system are not even capable of predicting whether their action would lead to a disaster. The non-permitted risk for the protected legal interest caused by an individual actor and the risk which arises through the operation of complex systems are of different character and they should be treated differently. Typical criminal responses against system failures such as negligence and abstract risk offenses (abstrakte Gefährdungsdelikte)may not be suitable for accident prevention, as they are based upon the idea that harm or danger to the protected legal interest are caused by an individual agent.