과실의 개념에 관한 연구

Abstract

Similar to the concept of intention, the concept of negligence has both the realistic side and normative side. Because negligence is the failure to exercise the reasonable care, it has its realistic side in terms of psychological tendency. However, it also has normative side in terms of deciding how much psychological tendency should be considered as intentional or negligent when looking at the borderlines such as gross negligence and willful negligence. Regarding the position of negligence in the elements-system of criminal act, monism, dualism and neo-monism have been developed successively. Monism looks at the position only as the element of responsibility. Dualism looks at it as the element of responsibility as well as the element of a crime. And neo-monism sees that the content of negligence is entirely the same whether in the element of a crime stage or in the responsibility stage. Currently, vast majority of Korea supports dualism. Recently, as the concept of risk-society has been brought to many people’s attention, theory of objective allocation based on the theory of allowed risk is attempting to set up the duty to exercise reasonable care. The attempts to crystallize the criterion for the violation of the duty to exercise reasonable care has been made from many different viewpoints. However, they are also common to each other in a sense that they often utilize the concept of the reasonable person, mobilize the special regulation, and refer to the actual circumstances of the general public. The 14th article of Criminal Law, the negligence rule, describes the punishment and therefore should possess the possibility to be clearly interpreted. Otherwise, it will violate the clearness of the principle of legality. The clearness of the Criminal Law is secured when the prohibited action can be identified using the general interpretation methodology. Using the concept of standard reasonable or prudent person as a criterion to define a negligent seems to render difficulty to acquire clearness. Also, while it is true that special regulation covers quite a large domain, it is still hard to say that it has been legalized flawlessly and lacksclearness. The last way to acquire clearness is by referring to the actual circumstances of the general public. This can be done through analysing the precedents that can be referred back to the specific case. Analysing the precedents is familiar to us as it is utilized in everyday interpretation of regulations and allows to take a look at the cases that do occur in the society and apply to the specific events. In that sense, the precedents seem to be the decent source for establishing the appropriate criterion. To sum it all, it will be most appropriate to utilize the precedents-analysis for crystalizing the criterion for duty to exercisea reasonable care.