객관적 귀속론과 영미법상 법적 인과관계

• 영문명: Objective Imputation and Legal Causation in Anglo-American Law
• 발행기관: 한국형사법학회
• 저자명: 김종구(Kim, Jong-Goo)
• 간행물 정보: 『형사법연구』형사법연구 제21권 제4호, 461~486쪽, 전체 26쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.01.31

영문 초록

Some crimes require the prosecution to prove that the defendant caused a particular result. Under Anglo-American law, the necessary causation is of two types: 'factual causation' and 'legal causation'. The dominant test for cause-in-fact is the sine qua non, or but-for test. If the harm would not have occurred unless the defendant had engaged in the conduct, there is cause in fact. However, there is no equivalent dominant test of legal cause. Legal causation is a flexible analysis involving a variety of policy considerations and which ultimately asks whether as a matter of policy the defendant should be held responsible for a particular result. The structure of the theory of causation in Korean and German law is almost the same as in Anglo-American law. Under Korean and German law, the causation has two aspects: 'natural causation', and 'objective imputation'. The natural causation is a matter of fact and determined by the sine qua non test like in Anglo-American law. Objective imputation questions cannot be answered solely by physical sciences. Thus, they are not facts that can be uncovered by scientifically examining cause and effect in the real world. The existence of factual causation will not alone support a finding of criminal liability. In addition, there must be proof of legal causation or possibility of objective imputation. The test for legal causation and objective imputation is not a matter of fact but a matter of law that is to be determined after evaluating various policy considerations. The tests for legal causation or objective imputation varies according to the point of view. Thus, it is important to develop certain tests for legal causation or objective imputation that can be approved of generally. For that purpose, it is necessary for Korean scholars to employ scholarly results from both German law and Anglo- American law.

목차

Ⅰ. 머리말

Ⅱ. 영미법상 인과관계에 관한 이론

Ⅲ. 영미법상 법적 인과관계론

Ⅳ. 형법상 인과관계론과 영미법상 인과관계론의 비교

Ⅴ. 맺음말

키워드

영미법 인과관계 객관적 귀속 사실상 인과관계 법적 인과관계 Anglo-American Law Causation Objective Imputation Factual Causation Legal Causation