미필적 고의와 명확성원칙에 관한 고찰

‘Willful negligence’ and ‘cognitive negligence’ are not the concept of the positive law but the norm to be left to the judiciary’s discretion. Even so, those are actually carrying legal binding force in the Supreme Court etc., and also theories, such as ‘the theory of the tolerance’ etc., are influencing on the judgements of judges. In that respect, it requests to make a judgement whether or not to violate the principle of legality. From the perspective of the theory of the will, it is insisted that we should beware of admitting the intention based on the only ‘cognition’ in the present risk-society. But the theory of the possibility based on the theory of the recognition will not easily give up the gate-keeping role to keep on eye on excessively permitting the limits of intention. Although choosing theory of the possibility, the cognition of the possibility of results is not made in abstract dimension, but in concrete with due regard to the circumstances of criminal behaviors. Therefore we can not necessarily say that the limits of intention will be expanded. The definiteness of ‘Criminal Code’ is depended upon whether it makes sure or not to secure the predictability and to exclude arbitrary law enforcement. It will be possible to say that if we can make a reasonable inference with the standards of the interpretation of law, there will be no violation against the principle of definiteness. Conclusionally, if we assign the validity of norms to the views, as the standards to distinguish between the essence of willful negligence and cognitive negligence, based on the theory of the recognition, it will be very possible to establish the standards specifically, to prohibit arbitrary decisions from evaluating those emotional?sentimental elements such as ‘tolerance’ or ‘submission’. Besides, from the legislation theory will be anticipated the clarity of Criminal Code §13. Also, based upon the unification of criminal justice system, it may be possible to overcome the debates concerning the standard of proving cognition in the criminal procedure.