영미법상 주관적 범죄성립요건으로서 ‘Recklessness’에 대한 고찰

Abstract

The importance of comparative research in law has been increasing. In order for such comparative research to be performed successfully, an accurate understanding of legal concepts in countries subject to such comparative research is required. There are many legal concepts in Anglo-American law that have not yet been accurately understood in South Korea, and one of them is the mental state of recklessness as one of the subjective elements required for the establishment of a crime. The purpose of this article is to examine the criminal recklessness in Anglo-American law for an accurate understanding of it, thereby enabling a more complete comparative research on Anglo-American law. According to Model Penal Code § 2.02(2)(c), “a person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct”. In light of such definition of recklessness under the Model Penal Code, in order for an actor to be recognized as acting with the mental state of recklessness, the actor should be aware of the substantial and unjustifiable risk that the material element of an offense exists or will result from his/her conduct. Therefore, it can be said that recklessness under the Model Penal Code puts importance on the actor's ‘awareness’ of risk, but not on his/her ‘desire.’ Recklessness in Anglo-American law, which focuses only on the actor's awareness of risk and not on his/her desire, includes dolus eventualis as well as advertent Fahrlässigkeit under Korean criminal law. In particular, the fact that Recklessness includes such advertent Fahrl„ssigkeit under Korean criminal law has significant implications for the criminal responsibility.