영국형법상 범죄의 주관적 요소

• 영문명: The mens rea in the Anglo-American Criminal Law
• 발행기관: 충북대학교 법학연구소
• 저자명: 이경재(Lee, Kyung-Jae)
• 간행물 정보: 『법학연구』第20卷 第1號 (2009), 35~56쪽, 전체 22쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.06.30

영문 초록

Our Criminal Law system derived from the Continental Legal system, especially Germany and Japan, but in recent years the Anglo-American legal system have been introduced into our legal system. However, it is said to be problematic to introduce foreign system without profound study or consideration: for example, the jury system. Therefore it need to be carefully studied foreign legal system. In Anglo-American Criminal Law, it is necessary for a act to have a actus reus and mens rea to be a crime: actus reus means the external element of a crime and mens rea mental element. The majority of criminal offences require, in addition to the actus reus, a specific state of mind on the part of the accused. In order for a criminal offence to be complete, the actus reus and mens rea must coincide in time. This rule can be of great practical importance, because it is often difficult to prove exactly when the mens rea was formed: the accused may argue successfully that the necessary mens rea was not formed until after the actus reus has been completed. Although each offences has its own mens rea, there are a number of mens rea word which occur frequently in the definitions of offences and which need to be examined. Mens rea terms can play a variety of function in the criminal law. Among mens rea, there are intention, knowledge and belief, recklessness, and negligence. Intention can be used as "constituting a harm', meaning that an act which would otherwise be blameless is made criminal law by the intention with which it is carried out. Many crimes require that an act should knowingly do something. Even wilful blindness may constitute knowledge. English law treats someone as knowing something if, being pretty sure that it is so, he deliberately avoids asking questions which might confirm the fact. An actor must normally be judged on the facts as he believes them to be. Someone is reckless if he or she takes unjustified risks. Recklessness is the necessary mens rea for many offences: Criminal damage, arson, assault, wounding. Perhaps it is simply the huge variety of offences which rely on recklessness as the basis of the necessary guilty mind which has given rise to the difficulties in its definition. Negligence compare the actions of the accused with those of a hypothetical reasonable person. a negligent act is one that falls below the standards expected of a reasonable ordinary prudent person.

목차

I.들어가는 말

II.영미형법상 범죄의 개념과 성립요건

III.Intention

IV.Knowledge와 Belief

V.Recklessness

VI.과실(Negligence)

VII.그밖의 mensrea:악의(malice)와 소지(possesion)

VIII.맺음말

참고문헌

Abstract

키워드

영미형법 범죄의 주관적 요소 의도 무모함 과실 the mental element of a crime intention recklessness negligence