원인에 있어서 자유로운 행위의 해석론에 대한 비판적 고찰

A Critical Study on the Interpretations of Actio Libera in Causa - Reviewing the Perspective of Paul K. Ryu -

By Article 10 (3) of the Criminal Act being legislated, the Criminal Act was provided a basis for more creative thinking of actio libera in causa. It can be understood that Article 10 (3) of Criminal Act builds on Article 13 (1) of the Constitution of the Republic of Korea and Article 1 (1) of the Criminal Act and recognizes the existence of full capacity of culpability in some cases. According to Article 10 (3), the ‘act’ of ‘a person who foresaw the occurrence of danger and incurred his/her own mental disorder voluntarily’ belongs to the legal elements of the offense. This is not necessarily interpreted as the exclusion of the principle of coexistence of offense and culpability. Professor Paul K. Ryu has already provided a space for interpreting actio libera in causa as the question of whether the full capacity of culpability exists even at the time of the commission of a crime by assuming penumbra situation. The object of culpability blame is the decision making of the offender who acted unlawfully. In the end, the offender who decided to commit a crime culpably in actio libera in causa is responsible for his/her self-determination. Foreseeing the occurrence of danger and incurring his/her own mental disorder voluntarily are the requirements for the application of Article 10 (3). It can be interpreted that when these requirements are met, the normativeㆍpotential culpability capacity is recognized whether or not there is a capacity of culpability at the time of the commission of a crime and actio libera in causa is punished. According to this view, there is no violation of the principle of coexistence of offense and culpability in actio libera in causa.