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KCI등재 학술저널

주관적 고의의 객관적 구성

(대상판결: 대법원 2018. 8. 1. 선고 2017도20682 판결, 대법원 2014. 7. 10. 선고 2014도5173 판결)

Intentional content is awareness of and perception of criminal activity. The question of how to ascertain whether an actor has intentionality is important in determining whether a crime is committed. If the actor makes a statement that denies that he did not have intention, the court may confirm the fact that the actor’s intentions existed through the statements or records of others. However, in the absence of direct evidence to prove a intention existence, intention can no longer be verified in court. “Intentions can not be objectively proven because intentions are subjective.” In such cases, the Korean Supreme Court “can prove intentions in such a way as to prove indirect facts or circumstantial facts related to intentional”. According to the Korean Supreme Court, a person’s consciousness can affect a person’s various behaviors and attitudes and appear in a certain form. Therefore, the content of the person’s consciousness can be reasonably deduced from a certain behavior or attitude. However, this method of reasoning presupposes that such consciousness, that is, intention exists. This reasoning is meaningless if the actor has no awareness or minimal volition to criminal activity. If an actor is ‘unaware’ of criminal activity, according to the principle of korean criminal law, punishment is not allowed because intention is not recognized. This paper examines the skepticism of the concept of intention as existence through Korean Supreme Court precedents. Until now, all theoretical discussions about intention have been made on the premise that intention exists in the world of facts. However, it isnecessary to examine whether the following viewpoints can be accepted in the criminal law theory: Intention is not subjectively but is constituted legally through objective (or normative) constitutional procedures.

대상판결 <1>: 대법원 2018. 8. 1. 선고 2017도20682 판결

대상판결 <2>: 대법원 2014. 7. 10. 선고 2014도5173 판결

참조판결 <1> (대법원 2017. 1. 12. 선고 2016도15470 판결)

참조판결 <2> (대법원 2012. 8. 30. 선고 2012도7377 판결)

[연구]

Ⅰ. 형사판결에서 고의의 존재와 증명

Ⅱ. 대상판결의 분석: 고의개념에 대한 접근법

Ⅲ. 고의개념의 전환을 통한 대상판결의 이해

Ⅳ. 결어

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