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KCI등재 학술저널

상당인과관계설의 상당성 판단기준을 위한 상당성의 구체화 작업 시도

피해자의 도피행위를 중심으로

Causation in the Criminal Law is very important as it is a part of an element of a crime, especially result crime. Where an accused is charged with a result crime, it is necessary for the prosecution to prove that her act or omission caused the prohibited consequence. Traditionally speaking, there has been several theories to solve the problem of causation. One is a sine qua non or but for theory, which must be established that the consequence would not have occurred when it did but for the accused s conduct. But the sine qua non theory is said to be not sufficient for it s ambit is too wide to establish the causation. So comes an adequacy theory, which means that when a prohibited consequence occurs whether the relation between the cause in question and the consequence is adequate or reasonable. For a long time the adequacy theory has been the majority in theory and cases in Korea. But nowadays a new theory has appeared before 25 years ago from the German Criminal Law, which is called objective attribution theory. It is getting and getting common here. Objective attribution theory means that a prohibited consequence comes from the cause in question. However, even though objective theory is popular among the scholars, adequacy theory is the majority in the criminal cases because of the Japanese criminal law theory. But it has been attacked by some scholars because the meaning of adequacy is somehow abstract or obscure. To overcome the problems of the adequacy theory, it must settle a new way of reasoning. As a one reasoning, there comes so-called Fright and Flight theory in Anglo-American Criminal Law. It seems to solve the problems of adequacy theory.

[대상판례 1] 대법원 1985. 10. 8, 85도1537

I. 들어가는 말

II. 우리 판례를 통해 본 결과적 가중범의 판단

III. 상당인과관계설의 검토

IV. 상당성 판단기준으로서의 ‘피해자의 도피행위’

VI. 맺음말

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