결과적가중범의 인과관계에 관한 판례 분석과 평가

Causation Theory in the Consequently Aggravated Crimes

As a part of an element of a crime, Causation in the Criminal Law is very important to settle up a crime, especially ‘result crimes’. In case of consequently aggravated crimes, causation is needed to confirm its criminality, too. Consequently aggravated crimes means the crimes whose punishment is aggravated because of its heavy consequences. Generally speaking, most popular causation theory has been a ‘sine qua non’(or ‘but for’) theory, which means that the consequence would not have occurred when it did ‘but for’ the cause(accused's conduct). But for the ambit of a sine qua non theory is too wide, it is said to be not sufficient for the causation theory. So comes an ‘adequacy’ theory, which means that when a prohibited consequence occurs when the relationship between the cause in question and the consequence is adequate or reasonable in the light of ordinary experiences. For a long time, the adequacy theory has been the majority in causation case law in Korea. Adequacy theory is still the majority in the criminal causation cases, but it has been criticized by some scholars’ ‘objective attribution’ theory, because the meaning of adequacy is somehow obscure. To overcome the criticism to the adequacy theory, it must settle a new way of reasoning. As a one reasoning, there comes so-called ‘Escape’ or ‘Fright and Flight’ theory. As a categorization of adequacy, ‘Escape’ or ‘Fright and Flight’ theory can solve the problems of adequacy theory.