형법상 행위개념의 규범적 재구성 - 존재론적 행위론의 한계 극복과 행위자 중심의 행위론 정립을 위하여 - = Normative Reconstruction of the Concept of Action in Criminal Law

다국어 초록 (Multilingual Abstract)

The concept of an ‘act’(Handlung), which serves as the starting point of criminal jurisprudence and the foundation of the crime system, has undergone various theoretical transformations over the past century, ranging from the naturalistic causal theory to the final action theory and the social action theory. However, these theories crucially lacked practical significance in discussing the theory of action because they examined the act itself and the subject of the act (the agent) as mutually independent and separate entities. Furthermore, as examined through the author's extensive research, existing action theories have failed to sufficiently perform the limiting function (Grenzfunktion) of clearly distinguishing between punishable acts and nonpunishable non-acts. This failure stems from their attempts to grasp the act as a purely ‘ontological’ fact or their reliance on the ambiguous concept of ‘social meaning.’ In particular, all these theories have exposed logical contradictions in explaining atypical types of crimes, such as crimes of negligence and crimes of omission.
This study argues that although the act in criminal law is a pre-constitutive issue, it is not merely a physical bodily movement but a ‘value-relational concept’ that must be understood within the specific normative system of criminal law. The author emphasizes that the concept of an act cannot be separated from the ‘agent’s capacity to act’ and that they are mutually relational. Accordingly, an act in criminal law is redefined as “any personal attitude in which an agent, possessing the capacity to act to purposively control their attitude or behavior, creates or causes a risk that should have been socially avoided.”
This ‘normative personal action theory’ not only logically encompasses crimes of negligence and omission without contradiction but also serves as a theoretical foundation that simultaneously secures criminal policy validity and the guarantee function. By preemptively excluding the conduct of infants or persons with mental loss from the scope of criminal evaluation, it effectively blocks the arbitrary intervention of the state's punitive power.