미국 형사법상 범의(Mens Rea)와 엄격책임(Strict Liability)에 관한 고찰 = Graduate School Student Thesis : Study on Mens Rea and Strict Liability of Criminal Law in America

다국어 초록 (Multilingual Abstract)

One of the unique concepts of the American criminal law that cannot be found in Korean criminal law is strict liability, which imposes liability even in the absence of mens rea regarding one or more elements of a crime. Strict liability had initially appeared for the effective execution of regulatory criminal law, which had proliferated based on legal positivism in mid-19th century. However, with the rise of judicial activism and legal realism in the 20th century, the cases of the Supreme Court and statutory law, emphasizing the requirement of mens rea, are gradually confining strict liability within narrower limits. Strict liability offenses are generally violations for which only fines can be imposed. These crimes are characterized by danger to public welfare, practical difficulty of proving the element of mens rea and the abundance of expected prosecution. Although the issue of constitutionality regarding the violation of due process and the issue of practicality questioning whether there is a deterrent effect are being raised, much of the law and many cases still acknowledge the existence of strict liability. Although the discussion of adopting strict liability in Korean criminal law does not hold much significance because of different legal system and doctrine, strict liability is suggestive to our discussion about newly arisenissues such as administrative penalty, ignorance of law and burden of proof.

참고문헌 (Reference)

1 박상기, "형법총론" 박영사 2009

2 이재상, "형법총론" 박영사 2007

3 조훈, "위법성 인식으로서의 mens rea" 5 (5): 2003

4 박상진, "영미형법에 있어 주관적 범죄요건(Mens Rea)에 대한 연구" 한국비교형사법학회 9 (9): 409-428, 2007

5 박강우, "영미형법상 엄격책임의 이해" 한국형사정책연구원 18 (18): 247-264, 2007

6 장규원, "미국 모범형법전에 대한 고찰" 한국비교형사법학회 9 (9): 459-476, 2007

7 金 載 潤, "現代刑法에 있어 擧證責任轉換의 許容限界에 對한 考察" 한국법학원 (86) : 122-139, 2005

8 Joshua Dressler, "Understanding Criminal Law" Lexis Pub. 2001

9 Frank J. Reminton, "The mental Element in cCrime" 1952

10 Henry M. Hart, "The Aim of the Criminal Law" 23 : 1958

11 Richard A. Wasserstorm, "Strict Liability in the Criminal Law" 1960

12 Francis Bowes Sayre, "Public welfare Offenses" 33 : 1933

13 Richard G. Singer, "Of Innocence and Innocents" 1999

14 Wayne R, "Morden Criminal Law" Thomson / West 2006

15 Herbert L. Packer, "Mens Rea and the Supreme Court" 1962

16 Gerhard O. W. Mueller, "Mens Rea and the Law Without It" 58 : 1995

17 Jerome Hall, "General Principles of Criminal Law" The Lawbook Exchange,LTD. 2005

18 Richard G. Singer, "Encyclopedia of Crime & Justice 4-Strict Liability" GaleGroup 2001

19 Paul H. Robinson, "Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond" 35 : 1983

20 Wayne R. LaFave, "Criminal Law" Thomson / West 2003

21 Richard G. Singer, "Criminal Law" Aspen Publishers 2007

22 Alan C. Michaels, "Constitutional Innocence" 1999

23 Joshua Dressler, "Cases and Materials on Criminal Law" Thomson/West 2007